Criminal Justice Bill

HL Deb 18 April 1991 vol 527 cc1559-610

3.34 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Lord Nathan moved Amendment No. 69ZA:

After Clause 22, insert the following new clause: ("Sentence for murder

. No court shall be required to sentence a person convicted of murder to imprisonment for life.").

The noble Lord said: I beg to move the amendment standing in my name and those of the noble Lords, Lord Windlesham and Lord Richard, and of the noble and learned Lord, Lord Lane. The noble Lord, Lord Windlesham, has asked me to say how very much he regrets, as I do, that he is unable to be here to participate in the debate today due to a long-standing engagement in the United States in which he has to play a principal role.

It may be for the convenience of the Committee if I mention briefly certain other amendments standing in our names; namely, Amendments Nos. 69A, 76A, 76B and 76D. Amendment No. 69ZA relates to the abolition of the mandatory sentence of life imprisonment. Amendment No. 69A seeks to establish in all life sentence cases a judicial procedure to set the period of imprisonment as punishment, presently sometimes called "the tariff". Amendments Nos. 76A, 76B and 76D contain proposals for new judicial procedures relating to release in life sentence cases (in the case of those convicted of murder, only on licence). If adopted, Amendments Nos. 69A, 76A, 76B and 76D would apply whether or not the present amendment relating to abolition of the mandatory life sentence is adopted. All the amendments together are designed to implement the principal recommendations of the select committee on murder and life imprisonment of your Lordships' House appointed in July 1988 of which I had the honour to be chairman.

I now return to Amendment No. 69ZA. The committee was required by its terms of reference to consider: The question whether imprisonment for life should remain a mandatory rather than a maximum penalty for murder".

The purpose of the amendment is to do away with the mandatory life sentence for murder with the result that sentencing for murder would come within the discretion of the judiciary with a maximum penalty of life imprisonment and thus bring sentencing in cases of murder in line with sentencing in other serious criminal cases. Appeal would of course lie to the Court of Appeal, either at the instance of the defendant or the prosecution as in other criminal cases since 1988.

The mandatory sentence of life imprisonment in cases of murder was introduced a generation ago in the context of the abolition of capital punishment. Whatever merits it may have had all that time ago, it has for many years now given rise to grave concern expressed with particular force in debates on the previous Criminal Justice Bill, now the Criminal Justice Act 1988, in late 1987. That led to the appointment of the select committee to which I referred.

The objections to the mandatory life sentence fall under three main heads. First, it vests in the Executive the effective power of sentencing exercised in secrecy. The mandatory life sentence vests in the Executive the right to determine how long the prisoner shall remain in prison; in the traditional words, for the purposes of retribution and deterrence or, in plain English, as punishment. It vests in the Executive the power to determine whether, after the expiration of that period, the prisoner shall or shall not be released on licence. Those powers have been exercised in secrecy. The Executive may have political reasons for reaching the decisions relating to specific prisoners. Justice needs not only to be done but to be seen to be done, which the present system notably fails to do.

Sentencing is essentially a judicial function which should be exercised in public and be subject to appeal. In the absence of those public elements there can be no confidence that a just and consistent sentencing policy is being pursued, the need for which was so much emphasised on all sides of the Chamber—and rightly so—in the earlier debate on the first amendment to the Bill.

Secondly, the punishment must fit the crime and be seen to do so. The application of one uniform sentence to all those convicted of murder in whatever circumstances is patently unjust and brings the law into disrepute. The scope of the crime of murder is wide and the variation in the circumstances in which it may be committed no less than in other criminal offences. The gravity of a murder may depend on so many circumstances that in attempting to select one or two of them to put murder into a special category leads to unacceptable anomalies. That is why the experiment carried out with such notable lack of success between 1957 and 1965 was terminated. The right way to deal with the matter is not to divide murder into degrees but to give the judge a discretion to impose the sentence which is appropriate to the particular offence, taking account of all the relevant circumstances.

Thirdly, and a consequence of that, is that the existence of the mandatory life sentence has resulted in the introduction of distortions in the administration of the law. A consultant psychiatrist and member of the Parole Board who gave evidence to the Select Committee argued forcefully that the defence of diminished responsibility was stretched in order to avoid the mandatory life sentence, in cases where it would manifestly be absurd and unjust for such a sentence"—

the mandatory life sentence— to be imposed".

While carrying out our study the case of the Thompson sisters arose. They shot their tyrannical father as he lay in bed suffering an epileptic fit and were given a two-year suspended sentence. That seems to have attracted nothing but public sympathy. Earlier in 1980, in the case of the Maw sisters, the sentence of three years' imprisonment on two young women who had deliberately killed their drunken father was harshly criticised for its severity and in the case of one of them was reduced on appeal to six months. The public are well able to recognise powerful mitigation even in the case of deliberate killing. The defendants were held to be acting under diminished responsibility in the Thompson case and under provocation in the Maw case. Those defences resulted in convictions of manslaughter and thus an escape from the mandatory life sentence which would have applied had they been found guilty of murder. So the existence of the mandatory life sentence itself introduces distortions into the law to avoid what are perceived to be its unjust consequences. That brings the law into disrepute.

But there are also other deeply felt consequences. The select committee sought evidence from the close families of those who had suffered bereavement by murder. It is perhaps easy for those of us in this Chamber who have not suffered in that way—there are some who have—to speak in an abstract way without regard to the human and social factors surrounding the crime of murder. The committee therefore invited the Parents of Murdered Children Group and the organisation Victim Support to give evidence to it. They expressed their concern that the existence of the mandatory sentence meant inappropriate verdicts of manslaughter. Many families of murder victims felt that, somebody being charged and found guilty of murder does imply and represent an appropriate recognition of the crime that has actually happened".

They made clear that they were pressing for a conviction of the crime of murder where that had been committed. The sentence, whether an appropriate determinate sentence or a life sentence, was of secondary importance. Since publication of the committee's report they have expressed their support for its conclusions. They are reported in last Tuesday's edition of The Times, 16th April.

It has been suggested that public concern as to further murders being committed by those who have once been convicted of murder, whether or not the offence was particularly heinous and whatever the circumstances, is such as to justify the continuance of the mandatory life sentence. But, as Justice in its evidence states: Experience has shown that the great majority of murders are committed in domestic circumstances by persons under immense emotional stress who are unlikely to offend again".

It is said that the mandatory sentence is a valuable deterrent. Yet the very fact that it is mandatory for all crimes which fall within the definition of murder dilutes what should be the awe inspiring nature of the life sentence. The common reaction that we all hear —"What is a life sentence: nine years?"—demonstrates that point. If the life sentence were discretionary it would, when awarded, reflect the heinousness of the crime and public revulsion, as does a life sentence in the case of rape.

If this amendment is adopted life imprisonment will remain available as punishment for murder. It will surely be awarded in those too frequent cases of heinous crimes of murder and the penal terms will surely be long, as they should be. The proposals that we have made represent no soft option.

It is also said that the mandatory life sentence must remain to allay public concern that government have gone soft on murder. Yet I cannot reconcile myself to the injustice of equating sentence for killing out of compassion and for murder in the course of terrorism, for financial gain or for political power; nor, I believe, can the public, of whom, after all, we form a part. I beg to move.

3.45 p.m.

Lord Lane

The arguments in favour of abolishing the mandatory life sentence have been rehearsed time and again both in this Chamber and elsewhere. Nevertheless, I shall try to make some points perhaps at the risk of repetition.

First, there is no greater difficulty in assessing the proper length of a determinate sentence for murder than there is in doing the same for any other form of serious crime. Secondly, the person in the best position to carry out that task is the one who has heard the evidence; namely, the trial judge. He hears not only the evidence about the commission of the offence but also the medical evidence as to any abnormal medical or psychological condition afflicting the defendant. He hears the social evidence about his background and upbringing and indeed any other evidence which he, the judge, deems it proper to call for. All that is spoken in open court, in the hearing of the defendant, the public and the press.

Thirdly, if the defendant considers that the sentence imposed upon him has been too harsh or, on the other hand, if the Attorney-General considers that the sentence upon the defendant which has been passed is too lenient, either of them can appeal to the Court of Appeal, Criminal Division, and again the matter is heard in public with all the natural safeguards which that single fact entails and in the presence of the defendant himself. That possibility of an appeal by the Crown is the new feature which perhaps removes one of the few objections—some would say, the only legitimate objection—to the removal of the mandatory sentence.

Let us compare that with what happens now when a mandatory life sentence is passed. First the defendant, the public and everybody know that what the judge says is untrue and that it is a practical certainty that the defendant will not spend the rest of his life in prison. Perhaps I may suggest in passing that to require a judge to pass a sentence which everyone knows bears no relation to actuality might seem to the casual observer to be marginally bizarre.

In fact the length of time spent in prison will range between the very short in the type of killing to which the noble Lord, Lord Nathan, referred—the mercy killing as it is sometimes called—and the very long for such crimes as the deliberate killings of large numbers of people. Indeed there will be cases where the life sentence will still be necessary because of the heinousness of the crime or because of the danger which the defendant, through his propensities or medical condition, may present to the public if released. In those cases, of course, the judge will say why he is imposing the indeterminate sentence and there will be consequential changes which are the subject of further amendments to which it is not necessary at this stage to make reference.

However, in the great majority of cases it will be a matter of applying the same sentencing principles as the judge applies in other cases of serious crime like rape, manslaughter or others where the maximum sentence is one of life imprisonment.

The great advantage of the change, I suggest, would be this. What is now decided by no doubt some admirable but anonymous person in the Home Office upon advice from a variety of sources, including the trial judge and indeed the Lord Chief Justice, all of it tendered in private, would be done openly and would be subject to appeal in the way that has been described. I do not know how the matter strikes your Lordships, but fairness being the objective of any system of justice the present situation seems susceptible of improvement.

What then are the arguments to the contrary? The first is that murder, the gravest of crimes, is exceptional and requires exceptional punishment. Not everyone would agree with the initial premise in view of the fact that intent to kill is not a necessary ingredient. Intent to do serious bodily harm is enough. Let us assume nevertheless that it is the gravest crime and that exceptional punishment is required for it. That can be achieved by the imposition of a long determinate sentence. No crime, however exceptional, requires the imposition of a sentence which everyone knows will not be implemented. Such a sentence is exceptional but for the wrong reasons.

The next argument, one understands, is this. There are some murderers so dangerous and unpredictable that it is impossible to foretell when it will be safe to release them into public life again; hence the necessity for an indeterminate sentence. No one would disagree with that proposition but it is no reason for treating the man who does not present that danger in the same way.

What other reasons are there? Is it thought a sign of weakness if the mandatory life sentence goes? If so, that is surely a serious miscalculation. It is no weakness to replace what I suggest is a flawed system with one which at the very least offers an opportunity to achieve greater fairness and so greater justice.

Lord Renton

Whatever the merits or defects of the present system, I find myself worried about what is proposed as an alternative. The Court of Appeal will have a jurisdiction to hear all appeals, whether appeals against life sentence or against shorter sentences. Indeed, we can anticipate that, except where the sentence is clearly a rather lenient one there will be an appeal in practically every case.

The Court of Appeal will find itself setting guidelines in order to try to create consistency on the part of the judges when awarding sentences in case of murder. Then there will be a wrangle in some cases as to whether or not the guidelines have been followed.

Parallel with that, as I understand the position, there is to be a life sentences review tribunal for consideration of life sentences only. It will be composed differently from the way in which the Court of Appeal is composed and will no doubt develop different principles of approach. One wonders what will happen if the guidelines proposed by the Court of Appeal do not turn out in the case of life sentences to be the same as the guidelines proposed by the life sentences review tribunal.

I believe that this is the first time that I have ever ventured to disagree with the noble and learned Lord, Lord Lane, for whom I and all in our profession have immense respect. I have great respect also for committees of your Lordships' House. It was with some hesitation that I decided to intervene briefly in this debate in order to express the doubts that I have about what is proposed. The noble and learned Lord has very properly mentioned that in every case the circumstances of the murder will be considered by the court in fixing sentence as will the character and antecedents of the accused and medical reports concerning him at the time of trial.

However, a third factor needs to be considered. It is the question of how the accused's personality, character and mental condition will develop, deteriorate or improve during his time in prison. That is a matter which the judges cannot anticipate when awarding a sentence which is not a life sentence. It is something which at present is considered. It is considered by the Parole Board in due course. It is considered by the Home Secretary on very expert, careful and highly qualified advice which he receives. It is the omission of the application of that third factor from the amendment which we are now asked to consider that I believe is regrettable. Therefore, in view of the confusion that can arise from disparity between the statement of guidelines by the Court of Appeal and the statement of guidelines in the case of life sentences by the review tribunal, and the serious possibility of short sentences of imprisonment for people who, in the light of experience in custody, should perhaps have been given a longer sentence, I have some misgivings about what is proposed.

4 p.m.

Baroness Platt of Writtle

I rise to support the retention of the mandatory sentence for murder. I was the only member of the Select Committee of this House on murder and life imprisonment to feel deeply that it should be retained. Therefore I speak with humility, but I am very much against the present amendment.

The majority of evidence, including that given by the noble and learned Lord the Lord Chief Justice, favoured its abolition. But we must not forget those whose evidence was strongly against its abolition. The Crown Prosecution Service was in favour of its retention. It believed it to be the appropriate retributive sentence for murder and that public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary. The service was strongly in favour of the power of recall throughout the murderer's life.

Ten murderers who have been released since 1968 have been convicted of a further homicide, as our report stated. A person who has killed once has demonstrated by his action that he is capable of killing again. At a time of increases in the number of violent crimes the abolition of the mandatory life sentence for murder would give all the wrong signals to the general public. Today many old people are in fear of violent crime. Many women fear domestic violence; that is perhaps the worst kind of all. If you cannot feel safe at home where can you feel secure?

I sat on the committee with a deep sense of sympathy for the victims of murder. By the very nature of the crime they can no longer be heard. Too often people's sympathy can turn to the murderer. The murderer should be justly heard, but, nevertheless, society should be properly protected against his possible repetition of violent crime.

A life sentence does not necessarily mean that the murderer will remain in prison for life. Later he will be released on licence under the supervision of a probation officer. If he behaves well he may remain free for the rest of his life. However, the safeguard lies in his being able to be recalled at any time by the Home Office if he again begins to exhibit violent symptoms, perhaps similar to those exhibited at the time of the first murder. It is in respect of the protection of the public from risk that life can mean life.

Although the noble and learned Lord the Lord Chief Justice and 12 judges were in favour of the discretionary life sentence, seven were not. In Scotland a number of people wanted the mandatory sentence retained, including the Lord Justice General, representing the High Court of Justiciary of Scotland, and the Faculty of Advocates, as did a majority of the members of the Association of Chief Constables of England, Wales and Scotland and the Scottish Police Federation.

I believe deeply that the mandatory sentence provides the main distinction between murder and manslaughter. It should be retained in order to emphasise the inestimable value that society places on life from the point of view of deterrence and retribution but above all through the system of release on licence for the protection of the rest of society. I hope that the Committee will vote against the amendment.

Lord Richard

The proposal that the life sentence should no longer be mandatory in murder cases has received growing support inside and outside Parliament during the past 15 years. The change was recommended in 1975 by the Butler Committee on mentally abnormal offenders; in 1978 by the advisory council on the penal system; in 1980 by half the criminal law revision committee, which. I accept, was divided on the issue; in 1986 by the parliamentary all-party penal affairs group; and recently by the Select Committee of your Lordships' House.

In reply to the noble Baroness, Lady Platt, I agree that one should consider the victim; it would be absurd, foolish and immoral if we did not do so. However, it is worth pointing out that organisations such as Victim Support and the parents of murdered children are in favour of ending the mandatory life sentence as a way of dealing with murder. The reason is twofold. First, if the mandatory life sentence is ended there will be more precision as to the date upon which the offender will be released. Secondly, it may help to remove what many relatives of murdered victims now ask—why should the verdict be one of manslaughter rather than one of murder? There is a tendency for manslaughter verdicts to be brought in under the present system when a murder verdict would have been more appropriate.

It is also interesting to note that, as a result of the mandatory life sentence, the United Kingdom has more life sentence prisoners than all the other countries of Western Europe put together. A recent survey carried out by the Quaker Council for European Affairs found that the United Kingdom has 3,503 life sentence prisoners; it is 3,050 if Northern Ireland is excluded. That number compares with 2,688 for the whole of the rest of Western Europe. The main reason for that is simple. It is that in this country we have a mandatory life sentence while in many other countries a high proportion of murder convictions are followed by fixed-term penalties.

The noble and learned Lord, Lord Lane, was right in saying that the arguments in respect of this issue have been well rehearsed. The argument in favour of change is based upon one simple proposition—that murders vary greatly. They vary from those that are planned and calculated, or are for material gain or from political motives, to those that are committed under severe pressure and in emotional circumstances of great stress, including many domestic murders. As many Members who practise in the courts know, there are many cases in which the killing could hardly be said to be intentional. The intention may have been to cause grievous bodily harm to the individual, but perhaps to the regret of the person causing that harm the individual died.

One can be anecdotal about the issue. Perhaps I may give an example of a recent case in which I was involved at the Central Criminal Court. My client, who was an accessory before the fact to a murder, was convicted of murder. The difference in the circumstances between her participation in the crime and that of the person who committed it was enormous. She encouraged it, but the crime was committed by someone who stabbed the victim no fewer than 27 times, and not in the presence of my client. In those circumstances it appears that, although the law says that there should be a conviction for murder for an accessory before the fact indicted as a co-principal —and I accept that—the difference in moral turpitude between the two individuals is enormous.

In a situation in which there are different classes of murder although they may not be recognised by the law, and even if there are no legal categories in law de facto, they differ in terms of premeditation, viciousness, relationship to the victim, gain to the offender, the type of victim, whether the killing was intentional or accidental and the morality of the whole incident. As was said by Lord Kilbrandon in the case of the DPP v. Hyam, it is no longer true, if it ever was true, to say that murder as we now define it is necessarily the most heinous crime and heinous example of unlawful homicide.

I wish to make only two further points in favour of the amendment. The argument that mandatory life imprisonment is necessary for deterrence is unconvincing. The part which deterrence plays in an offender's calculations, particularly in murder cases where so many of the victims are known to the defendants, is much less than is perhaps commonly supposed. The most calculating killers plan to avoid detection and would do so whether life imprisonment was mandatory or discretionary. On the other hand, those who kill under emotional pressure do not normally plan sufficiently rationally for deterrence to play a significant part in their calculations. In the Australian state of Victoria the life sentence became discretionary in 1986 and it is interesting to observe that there has been no subsequent overall increase in the homicide rate.

In any event, in so far as life sentences have any deterrent effect, that is surely lessened by the widespread notion that, on average, they result in only about 11 years in prison. If life sentences were reserved for the worst cases, for which periods spent in prison are much longer than the average, that would no longer be the case, as your Lordships' Select Committee pointed out. The fact that life imprisonment is mandatory dilutes what should be the awe-inspiring nature of the life sentence.

Finally, perhaps I may echo the sentiments and opinions expressed by the noble and learned Lord, Lord Lane. Everybody knows that a life sentence as passed by judges in our courts these days is a pretence. It is a pretence because the defendant, the judge and the advocates do not believe that it will happen. I cannot believe that it is sensible to continue with a situation in which people being convicted of an extremely serious crime—in some circumstances the most serious crime of all—should be subject to a pretence at the precise moment at which their liberty is being considered.

4.15 p.m.

Lord Harris of Greenwich

My Lords, I speak this afternoon in a dual capacity, both as a member of the Select Committee of your Lordships' House and as a former chairman of the Parole Board.

I propose to deal with two issues as briefly as possible. The first is the current situation which faces the trial judge when a jury brings in a verdict of guilty. He will pass a life sentence in a case in which an armed robber has shot a security guard who is protecting a vehicle containing a large sum of money. He will pass a life sentence where a man murders a relative for financial gain. He will pass precisely the same sentence on a man whose wife has begged him to kill her because she is suffering acute pain and is in the final stages of a terminal illness. The fact is that in each of those cases there is either an intent to kill or an intent to cause grievous bodily harm, which are the essential ingredients of the crime of murder. How can a similar approach and sentence be justified in such diverse cases?

I expect it will be argued at the end of our debate by the noble Lord the Leader of the House that public opinion, which he will argue favours a return to capital punishment, cannot possibly support the change recommended by the amendment of the noble Lord, Lord Nathan. I do not believe that his amendment, which I hope will be supported by the Committee, will create the degree of adverse opinion which the noble Lord the Leader of the House will put before the Committee.

I do not believe that the public would justify similar treatment in the three types of cases to which I have referred. However, there is an additional reason which was put by the noble and learned Lord the Lord Chief Justice. People know that the sentence of life imprisonment is bogus. They know perfectly well that in the overwhelming majority of cases the man or woman concerned will be released after a certain period of years. There is a belief that that period is nine years, but that is a misunderstanding because the period is rather longer. However, that is the view of a substantial section of public opinion.

The noble Baroness, Lady Platt, who was a very valued member of our Select Committee, said that in her view at a time of rising crime there would be grave public disquiet were this amendment to be carried. She said that the tragedy of the matter was that some people spent more time worrying about the defendants than the victims. However, as the noble Lord, Lord Richard, reminded us (as did the noble Lord, Lord Nathan) the only groups of people who came before the Select Committee to put forward the views of the victims supported the Select Committee recommendations.

The National Association of Victims Support Schemes, which works intimately with people who have been brutally struck down by criminals, supported this proposal, as did that very small group the Parents of Murdered Children Group. We were all deeply affected by the evidence given. However, it is absolutely clear that those people supported the Select Committee's recommendations. That has been subsequently made clear.

I now turn to a related matter dealt with briefly by the noble Lord, Lord Nathan, because I believe that it is important to look at the totality of the situation; that is, the release arrangements for life sentence prisoners. The present system of releasing life sentence prisoners is based on an arrangement which confers exclusive powers on Ministers. In my view, in recent years that has led to a number of quite significant abuses.

Until 1983, on the basis of a system introduced by the noble Lord, Lord Carr of Hadley, when he was Home Secretary—and this applied at the time at which I was chairman of the Parole Board—there was a joint committee from the Parole Board and the Home Office which considered the cases of life sentence prisoners at the three to four year stage; that is, three to four years after sentence. The committee consisted of the chairman of the Parole Board, the vice-chairman of the Pa role Board, who was always a High Court judge, and a consultant psychiatrist together with Home Office officials.

That committee decided whether to refer the case of a prisoner to the local review committee, which exists in every prison in this country, in perhaps a further four or five years in the case of what could loosely be described as a fairly uncomplicated domestic murder. In far more serious cases the joint committee would refer the case back to itself in, say, another four or five years because it was riot prepared at that time to decide on a firm date for the commencement of the review process.

As I have indicated, in 1983 Mr. Brittan, who was then Home Secretary, abolished the joint committee. That matter was touched upon by the noble and learned Lord the Lord Chief Justice on Second Reading of this Bill. M r. Brittan announced that in future Ministers and not the joint committee would decide the date of the first reference of a case to the local review committee at a prison. Your Lordships' Select Committee was able to measure the results of that change of policy. We discovered that there had been a quite extraordinary and, until the time of our inquiry, a highly confidential switch of policy. Until November 1983 —the time of Mr. Brittan's announcement about the abolition of the joint committee—the views of the Lord Chief Justice on tariff were, in my own direct experience, largely accepted both by Ministers and by the Parole Board. Indeed, I cannot recall any public dispute about the desirability of that policy.

After that date—in other words, after the end of 1983 when the policy was changed by Mr. Brittan—we know that in a large number of cases a junior Minister at the Home Office set a tariff higher than that recommended by the trial judge who, of course, is the only person who knows the direct facts of the case; and by the Lord Chief Justice who has immense knowledge and experience of life sentence cases having, I suspect, looked at the cases of several thousands of such prisoners.

The Select Committee discovered that in a six-month period in 1984—the first year of the new policy—Ministers increased the trial judge's recommendation in 80 cases out of 195, or roughly 40 per cent. of all the cases that came before them. In 1988 they established something of a record; they decided on a higher tariff in 63 out of 106 mandatory life sentences. It is a matter of considerable surprise that it was only when a Home Office witness, in answer to questions, admitted that that we discovered what had been going on.

It is remarkable that a junior Minister with no direct knowledge of a case other than a summary provided by officials can add a few years to a sentence without any established criteria. I asked about criteria when we discussed the Select Committee's report. I put the matter to the noble Earl, Lord Ferrers: no answer came. Of course the decision is taken in secret. The prisoner knows neither the judicial recommendation nor the fact that the sentence has been altered by a junior Minister. I should be interested to know whether the judiciary were ever told what had been going on. I specifically put the matter to the noble Earl, Lord Ferrers. He is always extremely helpful in answering questions asked by Members from any part of the Chamber. If he is not able to deal with the matter at once he is keen to write explaining the circumstances. Despite the question asked, no answer came from the noble Earl.

In my view that episode gives overwhelming strength to judicialising the entire process of the release of life sentence prisoners. As the noble Lord, Lord Nathan, indicated, a judge could, under the terms of the amendment give a determinate sentence in an appropriate case and where there is a life sentence—under the terms of the amendment life sentences can still be handed down by judges after hearing the views of counsel—the judge would announce in open court the number of years that the prisoner would have to serve to meet the requirements of retribution and deterrence. Ultimately, a tribunal presided over by a judge and independent of the judiciary would decide when he should be released.

We may be told that the public require that Ministers and not judges should make those decisions. In my view there is absolutely no evidence to justify that belief, which I am sure is sincerely held. No evidence has ever been put forward to justify it. In fact, I believe that precisely the reverse is true. To be blunt, I believe that the public have an infinitely greater confidence in judges than in Ministers—of any government—to make decisions on the length of sentences. That is why I hope that the Committee will accept the amendment.

Lord Morton of Shuna

I intervene briefly. The noble Baroness, Lady Platt, perhaps gave the impression that all Scots are bloodthisty. I rise to assure the Committee that they are not and that I am not alone among the judges of the High Court of Judiciary in Scotland who would be and are in favour of the amendment.

The principle behind the amendment is neatly stated in the booklet, The Sentence of the Court, which came out with a foreword by the noble Lord the Leader of the House last autumn. It said of sentences: Properly reflecting the relative gravity of the offence, and fairness between different offenders, are more important aims in the individual case".

I do not believe that that could be better put. I support the amendment.

Lord Alexander of Weedon

I wish to speak briefly on behalf of Justice, the all-party organisation of lawyers mentioned by the noble Lord, Lord Nathan, when introducing the amendment, and say that I support the amendment. I do so diffidently from these Benches but with the greater confidence because I believe that the amendment gives effect to the admirable principle of the Bill that the punishment should fit the crime. The Committee would therefore act in keeping with the spirit of an approach to sentencing which has been followed by successive Home Secretaries and developed with imagination and sensitivity by Mr. John Patten, if the amendment were passed.

I believe also that it would be a substantial bonus that the accused and members of the public should know the real sentence which the court intends. It would be immensely healthy for all if society, the accused and the Government were aware of the views of the court as to the right length of sentence for the specific offence. I find the existing system somewhat hugger-mugger. It can only be justified if we take the view that someone sentenced to life imprisonment puts his life at the discretion of the state thereafter. I do not believe that that is so. I should like to see the ordinary principles of punishment applied. I do not believe that anyone can suggest that our judges are otherwise than well qualified by experience to carry out that role.

I shall say no more. The noble and learned Lord the Lord Chief Justice, if I may respectfully say so, with his unrivalled experience and authority, has twice stated with immense cogency the clear case for the amendment, as have other Members of the Committee. I hope that in the light of the debate the Government will quietly think again and come to the view that the amendment meets the spirit of the Bill.

Lord Hunt

In view of statements in the press today that several former chairmen of the Parole Board for England and Wales are in support of the amendment, I rise to identify myself as one of those former chairmen. I assure the Committee that I have no intention of repeating the arguments to which the noble and learned Lord the Lord Chief Justice referred: they have been rehearsed time and time again. However, I should like to say to my noble friend Lord Harris of Greenwich that I strongly agree with every word he said. Whether he needs that support after speaking with such powerful effect is another matter.

I should like to put one point only to the Committee, and it is reiteration. In contending that what is needed is the power of the courts to use their discretion in imposing a life sentence there is an overriding need to restore to the life sentence the gravity and credibility which has been largely lost. In my judgment it is extremely important that a court imposing the life sentence intends that that should be so. It does not follow that in the light of circumstances many years later there should not be a release on licence subject to recall. As the noble Lord, Lord Richard, said, far too many people are serving so-called "life". It has become a figure of speech. There are well over 3,000 such people. It is meaningless and looks bad on the scoreboard compared with the record of other countries in Europe. It is important that we should limit the provision to the words intended.

Lord Bridge of Harwich

Almost anything one can say at this stage of the debate is bound to be a statement of the obvious. Perhaps I may make two obvious points. The first is that the argument that a mandatory life sentence is uniquely necessary for cases of murder in order to prevent the premature release of the murderer who will then repeat his offence will not stand scrutiny for one moment. If it were a valid argument it would apply to all other grave offences. Rapists and armed robbers are just as likely to repeat their offences when released after their determinate sentences and are perhaps more likely to do so than murderers.

The other obvious point has surely been made already and I seek only to summarise it. The mandatory life sentence is a blunt instrument which prevents the courts recognising by the sentences that they pass the infinite gradations of gravity in the crime of murder. No one disputes that those gradations should be recognised. They are recognised by the dates of release determined by the Home Office. Should the distinction between the gravity of one offence and another be made by the courts in public or by the Home Secretary in private? The answer is obvious: it should be made by the courts in public.

4.30 p.m.

Lord Macaulay of Bragar

Perhaps I may, as another non-bloodthirsty Scot, add a word or two in support of this progressive amendment. I draw the attention of the Committee to another aspect of the existence of this kind of sentence; namely, the practical difficulties faced by practitioners in the courts in getting people to plead guilty to homicide. I use that word in its broadest sense. There are many cases where there is overwhelming evidence that a homicide has occurred and that that homicide falls within the legal definition of murder. But, looking at it from a common sense point of view and from the background and circumstances of the case, very often even the Crown will concede that it is not murder as such.

The difficulty in getting an accused to plead guilty in the face of the overwhelming evidence is this: he will not plead guilty to a crime which leads to a life sentence being imposed, whereas if the life sentence were removed and there was at least the possibility of a determinate sentence, he might very well plead guilty. Another reason why a person does not plead guilty is that if he is sentenced to life imprisonment, that sentence often determines the prison in which the convicted man will serve his sentence. There are two compelling factors against an obviously guilty accused man pleading guilty to homicide in the form of murder as it presently stands.

Where there are several accused charged with murder and it is abundantly clear that only one of them committed the murder and the trial proceeds with the other co-accused still in the dock being dragged through the trauma of prison and a court trial, there is always the risk that one or other of the co-accused who is in no way guilty of the murder will be dragged into a conviction by the jury on the basis of a purported art and part participation. That of itself may very well lead to a miscarriage of justice which will have to be unravelled over a long period of time. We have all had plenty of experience of that in recent days.

Finally, there is the effect that the public is put to unnecessary expense by unnecessary trials which could be avoided if the mandatory life sentence were done away with. If that is done then another matter arises. If the mandatory life sentence goes, then perhaps the word "murder" should be removed from the catalogue of crime in our society and we should start thinking of a general definition of causing death as justifiable or unjustifiable homicide, leaving the sentence at the discretion of the presiding judge.

In view of the tone of the debate and the opposition to this amendment, it is important to remember that the life sentence has not been done away with. It is still there as an implement for the judge to use in a necessary case. Accordingly, I speak in support of this amendment.

Lord Ackner

I should like to repeat the emphasis which has just been given by the noble Lord, Lord Alexander, that the theme running through the Bill before the Committee is that, convicted criminals … are punished justly and suitably according to the seriousness of their offences".

The very words are to be found in paragraph 2.1 of the Government's White Paper. The so-called just deserts rule is not exactly a revolutionary concept. In that White Paper the mandatory life sentence of imprisonment for the crime of murder was justified on the basis that it marked the heinousness of the crime. That description has since been upgraded.

When replying to the debate at Second Reading of this Bill, the noble Earl, Lord Ferrers, who of course adds stature to any proposition which he enunciates, said: The Government believe quite simply that murder is the most heinous of all crimes".—[Official Report, 12/3/91; col. 164.]

A few sentences later, at col. 165, he stepped it up slightly by saying: However, the fact is that murder is the most heinous of all crimes".

That is an empty formula. Both in the report by your Lordships' Select Committee on murder and life imprisonment and in the two speeches which I have already wearied the Chamber with when this matter has been debated, there has been a reference to the observations made by my noble and learned friend Lord Hailsham in his judicial capacity when presiding over a murder case about two or three years ago, R. v. Howe. He said: Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degree of culpability, ranging from brutal, cynical and repeated offences, like the so-called 'Moors murders', to the almost venial if objectively immoral, mercy-killing of a beloved partner".

Similar words were said about 15 years earlier by Lord Kilbrandon, as has already been said, in the case of R. v. Hyam. I have yet to understand the basis on which those judicial observations, which would be concurred with by every judge, are rejected by the Government. It totally overlooks the fact that in this country we have no categories of murder. We have tried in the past to isolate and define particularly serious categories of murder but failed to do so because the gravity of a murder cannot depend on one or two isolated factors. It may depend on many.

In paragraph 88 of the Select Committee's report, we pointed out that as the law now stands—and we suggested that it should be amended—a person who bona fide is acting in self-defence but kills when using more force than is justified is guilty o F murder. He is not guilty of manslaughter. How can one compare such a case with the terrorist who plants a bomb on an aeroplane intending to kill the 400-odd passengers but because of some happy coincidence it is discovered?

It has already been pointed out that murder includes not only the intent to kill but the intent to do serious bodily harm. How can one compare the murder which results from a man losing his temper in a public house—where the defence of provocation is not open to him—and jabbing his beer mug into the face of the person he is angry with, intending to do him bodily harm, but that is all, but it causes a haemorrhage and the man dies to the case of the sexual, brutal and sadistic attack by a man on a child? The two are not in the same bracket. To refer to all murder as being of the utmost gravity and the most appalling of all crimes is just not right. As has been pointed out, the result has been that the whole concept of the life sentence has become devalued. The public do not look on it in the manner in which the noble Earl, Lord Ferrers, suggested.

Finally, I make these two minor points. The noble Lord, Lord Renton, referred to Amendment No. 76A, which we have not yet reached. It is concerned with the life sentence tribunal.

Lord Renton

I think the noble and learned Lord will recollect that the noble Lord, Lord Nathan, when beginning his remarks on the amendment which we are primarily discussing at the moment, referred to this later amendment.

Lord Ackner

Certainly I recall that, but I am seeking to suggest to the Committee that we should take one thing at a time. There is an answer, I hope, to what my noble friend raised and I should like to give it, if it is not given in due course. We are on a quite separate self-contained question.

In relation to Scotland, as a member of your Lordships' Select Committee on Murder and Life Imprisonment, I attended a session in Edinburgh with the noble and learned Lord, Lord Morton, and others. At that session the Lord Justice General made apparent his anxiety that if the mandatory life sentence was removed in Scotland there would be a danger of an occasional far too lenient sentence being imposed which would cause public outcry and reduce the confidence in the administration of justice. Scotland does not have, as we do in this country, Section 36 of the Criminal Justice Act 1988, which enables lenient sentences to be the subject matter of an appeal so that they can, as a result, be put right. As my noble and learned friend the Lord Chief Justice said in his evidence to the committee, it would take very little time, particularly as it is essentially the High Court judges who deal with murder, for a tariff to be established and for guidelines to be established. The problem which my noble friend Lord Renton mentioned can be referred to at a later stage, because there is an answer to it.

If the theme of this important Bill is to be maintained then I respectfully submit that the amendment is irresistible.

The Earl of Dudley

I wish to say only a few brief words. Like many Members of the Committee I am very impressed by the weight and battery of legal opinion, from the Lord Chief Justice downwards, which is in favour of the removal of the mandatory life sentence. Looking at the matter from another point of view, it seems to me that there are only two categories of murder. One category is that in which the victim —perhaps it is a misnomer to call him the victim—welcomes the taking of life—the true mercy killing, the euthanasia killing. The other category of murder is that in which the victim had no wish to lose his life; indeed, where his life was taken from him as a matter of surprise and without any sense that that was going to happen. It is a tragedy for that person to lose his life.

That seems to me the only second category of murder. If that is so, surely there is no possible way in which murder of that kind can be qualified in the sense of the type of murder—how it took place, why it took place. The victim lost his life; which seems to me to run right across all categories of murder other than euthanasia killing. For that reason I cannot see that there is really any good sense at all in qualifying the type of sentence for that category of murder where the victim loses his life without wishing to do so as a true victim of murder.

4.45 p.m.

Lord Campbell of Alloway

I ask the Committee to accept my sincere apologies for not having been able to attend until this hour. I have been engaged in the courts. I was a member of the Select Committee and I should like to say a few words in support of this amendment.

I wish to make a short contribution as it is understood that the Government are fundamentally opposed to this amendment. As I understand it, the opposition on the part of the Government is based upon a curious process of reasoning with which I certainly am not able to agree. The reasoning goes that murder is the most serious of all crimes; then, as my noble friend the Leader of the House opines, anyone who takes a life should forfeit his own and that abolition of capital punishment, an effective deterrence, was only agreed as a trade-in for a mandatory life sentence. The reasoning continues that if one removes the mandatory life sentence and introduces a discretionary life sentence the public will not wear it, it removes the stigma and it removes an effective deterrence.

This reasoning lacks cogency. Not all murders are the most serious of crimes; for example, some domestic murders and the mercy killings. Apart from the armed robber—an important consideration—capital punishment affords little deterrence, and mandatory life of between nine and 11 years affords no deterrence whatever. The trade-in makes no sense today when some of us feel some relief that those recently acquitted on grounds of mistrial and false evidence are alive and not dead. The stigma lies in the conviction of murder but not in the sentence. Those convicted of murder are not the most dangerous of criminals so far as concerns the protection of the public.

It was concluded unanimously by the Select Committee that we could not put murder into categories, even if there were to be some statutory definition of murder. The noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Emslie, were of that opinion. If murder cannot be put into categories the only reasonable approach to sentencing is that proposed by the amendment. The Committee may know that the Parents of Murdered Children Group took the view that the mandatory life sentence afforded no deterrence and that they, with one voice, support this amendment.

Baroness Darcy (de Knayth)

I support the amendment. I shall not rehearse all the arguments in favour of it. It would ensure, as the noble Lord, Lord Alexander, has said, that the real sentence that the court intends would be passed. I should like to add that, as very much the ignorant lay member of the Select Committee, I was very impressed by the detrimental effect that the indeterminant sentence had on all the people whose lives were touched by murder because of the uncertainty. The prisoners had no framework in which to live out their sentences. The prison officers found that it made their job more difficult. Both groups talked of the need to have light at the end of the tunnel.

Victim Support and the Parents of Murdered Children Group have already been quoted as supporting this amendment. The noble Baroness, Lady Platt, said that victims can no longer be heard. However, the families of the victims can be heard. Perhaps I may quote from page 501 of the oral evidence of our report where a member of Victim Support says: Why actually give it the term 'life' when it does not actually mean life … This contributes to people having perception of the criminal justice system as not being part of the real world and there being a gulf between the social and human issues around murder and how the law sees it. That makes people feel quite isolated from a system which they have always looked up to".

I should have thought that was a very good argument in favour of the amendments from that group of people whose lives have been so intimately touched by murder.

Lord Griffiths

I have served as a trial judge in the Queen's Bench Division for 10 years. I have also served as the vice chairman of the Parole Board. I have tried murders in all parts of England and Wales. They have been of an enormously differing variety of gravity. I have tried appalling terrorist planned slaughters of the innocent, such as the murder of the Israeli airline crew just off Grosvenor Square. I have, in the majority of the murders I have tried, been dealing with tragic breakdowns of domestic relationships when both the murderer and the victim were under the influence of drink. In each case I had to pass a life sentence. In all the domestic cases, I knew that a life sentence was a mockery because everyone, including the public, knew that the murderer would not serve a life sentence. But I was required, and did, write to the Home Secretary expressing my view of the offence and suggesting the deterrent and punitive element in the sentence.

I very much support the noble Baroness in her assertion about the difficulty it causes to a person being sent away, possibly to serve many years in prison—as they believe—without knowing that the judge has written to the Home Secretary suggesting a comparatively short period. In my experience such a suggestion is generally accepted. That seems to me to be a wholly unacceptable way to do things.

On the other hand, there have been cases, such as those I have instanced—notably the terrorist attack —which fully merited a life sentence and where such people should have served life sentences. However, I had no means of knowing whether that would be so. Therefore, to require the same sentence to be imposed on all who kill in circumstances which fulfil the definition of the crime of murder is to debase the life sentence.

I shall not rehearse all the other arguments which have been advanced in favour of the amendment and which were so ably put by other speakers. However, I should like to express my support for it.

The Lord Privy Seal (Lord Waddington)

I would be failing in my duty if I did not, at the outset of my response, pay tribute to members of the select committee. No one who has read the report can doubt the enormous amount of work which went into its preparation. It is therefore with reluctance, and also I should say with some humility, that I have to tell Members of the Committee that I simply cannot agree with the conclusions which have been reached.

I did not take part in the debate on Second Reading on 12th March, but I was present in the Chamber. I was slightly amused when I heard the noble and learned Lord, Lord Ackner, say at one stage in his speech that the reluctance of the Government to abolish the mandatory life sentence was probably political. I suppose that it depends on what one means by the word "political". However, bearing all factors in mind, I believe that I probably have to plead guilty to that charge. But I do not feel any the worse for that.

The Government have to judge what the public reaction to abolition would be. The Government have done their best to make a proper judgment on the matter and they have concluded that the consequence of such a change would be extremely damaging to confidence in the criminal justice system and, in particular, in the judiciary. I shall shortly explain why that is so.

I also think that in the long run, if not in the short run, it would lead to pressure for people guilty of less serious murders (who under the changed regime would be the candidates for determinate rather than life sentences) to be kept in prison longer than they are at present. There would be continual allegations in the press that inadequate sentences were being passed by the courts. As a result of such pressures being brought on the courts, longer sentences would be imposed.

I do not believe that one can ignore the background to the introduction of the mandatory life sentence, to which reference has already been made. I trust that Members of the Committee will bear with me if I refer to it once again. Parliament was saying to those who did not approve of the abolition of capital punishment and to those who were nervous about the possible consequences of the abolition of capital punishment: "Don't worry. The unique nature of the crime of murder will still be marked by a special punishment. The murderer, because he has taken another life, will still surrender his own in a very important respect. He may not spend the rest of his days inside prison. He may be released on licence, but the sentence will last for life. He won't be released without the consent of the Home Secretary, who will be answerable to Parliament if things go wrong. And because the sentence will last for life, he will be liable to recall after his release if he does not behave and if it is thought that, once again, he has become a danger to the public."

That point was clearly made by my noble friend Lady Platt of Writtle in her speech. My noble friend Lord Alexander, whose expertise I admire—and I am sorry to have to disagree with him again—said that people did not put themselves in the hands of the state when they were sentenced to life imprisonment. But I believe that that is exactly what happens. The precise purpose of the sentence of life imprisonment is that, although they do not sacrifice their lives in the same way as they would if they were hanged, such people sacrifice their lives in the sense that whether they are released or not is a matter for the state.

I must point out to the noble Lord, Lord Harris of Greenwich, that, having spent many years in the Home Office first as a Minister of State and then for a far shorter period of time as Home Secretary, I cannot accept that these powers in the hands of the Home Office have been abused. I believe that they have been honestly used by Ministers. Such Ministers no doubt had in the forefront of their minds their duty to do all that they could in order to give proper protection to the public.

I revert now to what I said earlier. I believe that the sort of explanation which Parliament gave to the public many years ago at the time of the abolition of capital punishment (when a life sentence was substituted for capital punishment) was of some comfort to the public. I think that we should pause for a long time before going back on those assurances. Then, having done so, we should ask ourselves whether anything might happen after the disappearance of the mandatory life sentence which would in fact weaken confidence in the criminal justice system.

It is in that context that I should like to refer to a debate which took place in this Chamber on 5th February 1980 on the proposal in the Criminal Justice (Scotland) Bill that a judge on passing a mandatory life sentence should be required, rather than just permitted, to recommend a minimum period for which the convicted person should remain in custody. Some noble Lords who are here today will remember that debate. Lord Fraser of Tullybelton and the noble and learned Lord, Lord Keith of Kinkel—who I was glad to see in the Chamber earlier—both argued strongly against the proposition that judges should be required to state what they believed should be the minimum sentence that such a person should serve after being sentenced to a life term.

Lord Fraser said at col. 1248 of Hansard that in quite a number of cases the minimum period which the judge would have to state—that is, if he was mandated so to state—"might be very short". He referred to a stabbing case. It was not a mercy killing but a case of a young man who had stabbed another young man in a quarrel after there had been an argument about a girl friend, where he said that he would have recommended release in not less than two years. He said that if he had been required to say that that was his recommendation, that recommendation would have been greeted with uproar. Much better, he argued, that a formal sentence of life imprisonment should be imposed in that kind of case, and that it should be left to what he described as "the machinery" to see how long the young man should remain inside.

The noble and learned Lord, Lord Keith of Kinkel, made a similar point. The recommendation, he said, in the "run-of-the-mill" murder case would be nine, 10, or 11 years. That is far, far less than it would be in a really bad case, and the public would fix their attention not on the recommendation in the really bad case, but on those cases where a life sentence was passed and a recommendation was made for nine, 10, or 11 years. It would do no good whatever, said the noble and learned Lord, for confidence in the legal system. The noble and learned Lord was, with respect, quite right, and if he was right about mandatory recommendations what I am saying, with respect to this Committee, about the courts being given power to pass fixed terms of imprisonment must also be right.

Of course advocates of change concentrate on the true and rare mercy killing case, and they say that the law must be changed because of the alleged injustice in sentencing such a person to life imprisonment. Well, perhaps if there is an injustice that could be better met by a change in the definition of murder. The noble Lord, Lord Nathan, said during the course of his speech that the scope of murder was wide and led to distortion. I think he was saying that many people had not been tried or convicted of murder when murder had actually been committed, because those responsible did not want to have to face up to what would be the consequences for that person if that person were tried and convicted of murder. What he was saying, in effect, was that there are some who do indeed doubt whether we have got the definition of murder right.

Or course that was the logic of much of what was said by the noble Lord, Lord Harris of Greenwich, and it was almost expressly said by the noble Lord, Lord Macaulay of Bragar. I do not know whether or not the definition of murder ought to be changed, but certainly it would be one way of addressing this problem of injustice that has been referred to by some noble Lords. I do not know whether or not it is right to change the definition of murder, but I do know that we have a difficult question to ask ourselves.

If the definition of murder is still to cover mercy killing is it so terrible that a mercy killer should be sentenced to life imprisonment and then released pretty quickly by the Home Secretary? Would it not be far worse if the public were to feel that it was not being adequately protected, as a result of continual revelations in the press of allegedly weak judges giving two years in the kind of cases referred to by the noble and learned Lords, Lord Fraser and Lord Keith? Would it really inspire confidence in the administration of justice to allow, as suggested in paragraph 107 of the select committee report, the whole range of dispositions for murder from life imprisonment to probation, to a fine or an absolute discharge? I doubt it very much indeed.

The noble Lords, Lord Nathan and Lord Richard, referred to the Parents of Murdered Children Group. I read a piece in The Times yesterday, and I have just been handed a copy of it now. Quite clearly those who said that, as a result of what they had been told, they were in favour of the select committee report were saying that what they disapproved of so much was that people were being released far too quickly. They were not saying that they were in favour of the select committee report because they wanted people to be released more quickly.

Whether a change in the law would bring the result that those people want—namely, people landing in prison and staying in prison for very much longer—is a big question that really has hardly been addressed at all today. I doubt it, and I think that they would have doubted it had they, for instance, read the speech of Lord Fraser and had known for how short a period some judges think people should stay in prison for murder. I am not talking of mercy killings; I am talking of the kind of case referred to by Lord Fraser —the case of a run-of-the-mill stabbing, you might think. For example, one young man stabbing another to death after a quarrel about a girl friend.

I agree with the view of the Crown Prosecution Service. It is certainly not a question of all the evidence presented to the Select Committee being one way. One might have thought that at times listening to some of the speeches. I have to agree with the view of the Crown Prosecution Service as expressed at paragraph 112A of the Select Committee's Report, that public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary.

I commend to the Committee the contention of the Crown Prosecution Service that the public favours a strong reaction to the deliberate taking of one life by another",

and to allow individual judges the power to determine the appropriate sentence would often lead the public to question why a particular judge adopted a particular course of action.

Obviously one has to listen with the greatest respect to a speech when it is made by a Lord Chief Justice, and I have to say to the noble and learned Lord, Lord Lane, that I listened with the greatest attention to what he had to say. He said that it was really no more difficult for a judge to assess the right sentence in a murder case than in any other case. I would suggest to the Committee that in the worst cases of murder it is incredibly difficult to assess the public reaction to the release of a murderer 20, 30, or 40 years on.

One has to remember that it is a part of this whole bundle of proposals that when a life sentence is imposed the trial judge will, at the trial, have to state how long a person should have to stay inside to deal with the penal aspects of the case. I am not talking about danger to the public now, but I am saying again that it is incredibly difficult for anybody to assess now what the public reaction to the release of a terrible murderer will be 20, 30, or 40 years on. My noble friend Lord Renton is right to say that at the time of sentencing it is impossible to know how a person's character will have developed 20 or 30 years on.

There is another real difficulty. What is suggested is that in the worst cases life imprisonment would be passed with the judge specifying the penal term with eligibility for parole at the half-way mark. I wonder what the Committee has in mind for the really bad, wicked beyond belief, type of case. The noble Earl, Lord Longford, states his view in Amendment No. 69C. However, I do not think it begins to equate with what the public expects and is entitled to expect. The public would be absolutely amazed to hear that anyone thought that a penal sanction of 20 years, reduced as a result of the operation of parole to 10 years, could be the maximum penal sanction in a murder case.

The Earl of Longford

Perhaps I may interrupt the noble Lord. He keeps returning to the idea of public reaction, but I believe in justice. That is what this House stands for and certainly what the judiciary stand for. They do not look over their shoulders all the time at what the Sun newspaper tells them.

Lord Waddington

With the greatest respect to the noble Earl, neither should we be so arrogant as to say that we know better than everyone else what is justice. Parliament has always paid regard to what ordinary people think in deciding how sentences should be passed in the courts. That has always been the case. It will be a sad day indeed if we, from our Olympian heights, decide that 10 years is an adequate punishment for murder. That could not possibly equate with the views of an ordinary man in the country. I should have thought that the public may have in mind, in the wicked beyond belief case, a penal term in the region of 60 years. After all, that would only be 30 years after the present or proposed system of parole has been brought into effect. Sixty years would not be thought extraordinary at all. However, would judges in this country be comfortable with having to indicate sentences of that length? I do not know of a single sentence of that length ever having been passed by a judge.

Members of the Committee must recognise that we are entering uncharted territory here. If we enter the territory where judges either have to state determinate sentences or pass life sentences and then a penal sanction which is subject to parole, it may be that certain judges have a very different idea from members of the public as to the appropriate determinate sentence or the penal sanction to be stated when the life sentence is imposed.

It is for the proposers of the amendment to say how, facing these difficulties, they argue that public confidence would in no way be dented by the abolition of the mandatory life sentence and, incidentally, why we would not be forced down the road of inordinately long determinate sentences for some less serious cases as happens in America.

I fully appreciate the care with which the select committee considered the issue. I can assure the Committee that the Government considered with great care the arguments advanced before announcing their conclusion in paragraph 6.15 of the White Paper. Of course, murders vary in their heinousness; of course, there are other terrible crimes. But most people look upon the taking of another person's life as uniquely horrible. That is why, when the death penalty was abolished, it was decided that the alternative sentence put in its place had to be one which continued to mark out the unique wickedness of the crime of murder. That is why we have the mandatory life sentence.

When the restoration of the death penalty has from time to time been considered in another place, it has always been voted upon against the background that the alternative to the death penalty is the mandatory life sentence. I believe that if we abandoned the mandatory life sentence for murder, it would greatly damage public confidence in the criminal justice system and its ability properly to punish the most grave of crimes. I agree with my noble friend Lady Platt of Writtle that all the wrong signals would go out to the public. I cannot advise the Committee to accept these amendments.

5.15 p.m.

Lord Richard

Before the noble Lord sits down at the end of his revealing speech, is he seriously trying to justify the retention of the mandatory sentence of life imprisonment for murder on the basis that there is so little public confidence in the actions of the judiciary in this country that the effects of their decisions have to be kept secret from the public? If that is his argument, it is a pretty poor one.

Lord Waddington

I have never heard such an extraordinary misrepresentation of what I said. If tomorrow the noble Lord cares to read carefully what I said, I am sure he will realise that he is not doing justice to my speech.

Lord Ackner

Before the noble Lord sits down, perhaps I may ask whether he has read paragraph 178 of the Select Committee report. The last part reads: After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now. The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life".

Lord Waddington

I had the opportunity of discussing this matter with the noble and learned Lord when he came to see me at the Home Office some months ago. We had to disagree then, and I disagree now. That may have been what the select committee thought would be the consequences of its proposals. However, there is much evidence to show that the select committee was entirely wrong. I gave some of that evidence today and some is clearly contained in the speech made by Lord Fraser some years ago and that made by the noble and learned Lord, Lord Keith, to which I also referred.

Lord Mishcon

Perhaps the noble Lord the Leader of the House will forgive me for intervening. Before he finally sits down, will he deal with two short questions? He said that he did not like arrogance. Would the Government feel that it is not arrogant to go against the advice, first, of one of your Lordships' select committees which has made the recommendations to the House, and secondly, the Lord Chief Justice, two Lords of Appeal in Ordinary and other judges who have spoken in this debate?

Lord Waddington

I cannot agree with the proposition that a select committee's report—however illustrious the Members who composed the report—should be accepted rather than the view of the whole House. It is now for the whole House to decide whether the Members of the select committee, who tried hard, at the end of the day came out with the right result. I happen to believe that they did not. The noble Lord knows full well that although a majority of judicial opinion may be on the side of the select committee, a sizeable minority disagrees with him.

Lord Nathan

It would be quite wrong for me to attempt either to summarise the points which have been made or to make a long speech at this stage of the evening. I do not propose to do either. All that the noble Earl, Lord Longford, says in this Chamber is given careful consideration, but the noble Lord the Leader of the House went a little far in suggesting that the noble Earl's proposal, which has not yet been considered by the Committee, with regard to parole in the context of another amendment, is already the law. It has yet to be considered and no doubt will be, most carefully, when the time comes.

One can have many views on the definition of murder. In the committee we debated long and hard whether it was possible with clarity and certainty to define the crime of murder in such a way as to create the kinds of categories which, from this debate, it appears may be desirable. We reached a negative conclusion on that. As I said in my opening remarks, we therefore decided that the way to deal with the matter was to give to those responsible for sentencing the discretion to impose a sentence appropriate to the murder and not to attempt a task which we found was an impossibility.

It is rather late after the debates of 1957 and 1965 to go back to the origin of the mandatory life sentence in the context of the abolition of capital punishment. Those debates took place a long time ago and many of us were not concerned with these matters at that time.

The noble Lord the Leader of the House referred to the Home Secretary's responsibility to Parliament in relation to the administration of justice. He was correct to refer to that. The difference between us is that I consider that the Home Secretary's responsibility to Parliament is in relation to the administration of justice and not in relation to the punishment meted out to certain prisoners. The latter measure has been avoided in all civilised societies over centuries and is much to be deplored.

I return to the three main headings under which I made my opening remarks. I believe the mandatory sentence leads, and has led, to vesting in the Executive, which operates in secrecy, the power of sentencing individual prisoners. I believe it is most unfortunate and objectionable that that should be the case. Further, the scope of the crime of murder is wide. I suggest that however much attention is paid to the possibility of redefining it under expert guidance— perhaps of the noble Lord the Leader of the House —it will still be wide because it is not only the crime itself but the circumstances in which it is committed which must be relevant to an appropriate sentence. Therefore I do not believe that process provides a satisfactory route to follow.

The fact that the crime of murder is wide in scope —no one in this debate has questioned that—and that life sentence is at present mandatory has led to the distortions to which I have referred. I believe that public confidence in the administration of justice in this field would be enhanced by the abolition of the mandatory life sentence. All of us wish to promote public confidence. The question between the noble Lord the Leader of the House and other Members of the Committee is where public confidence lies. I have no doubt myself that public confidence in the administration of justice would be greatly enhanced by the abolition of the mandatory life sentence. I have said quite enough at this stage and the time has come to take the opinion of the Committee.

5.23 p.m.

On Question, Whether the said amendment (No. 69ZA) shall be agreed to?

Their Lordships divided: Contents, 177; Not-Contents, 79.

Division No. 1
CONTENTS
Ackner, L.	Ardwick, L.
Acton, L.	Ashbourne, L.
Addington, L.	Attlee, E.
Airedale, L.	Aylestone, L.
Aldington, L.	Baldwin of Bewdley, E.
Alexander of Weedon, L.	Beloff, L.
Allenby of Megiddo, V.	Birk, B.
Ampthill, L.	Blackstone, B.
Annan, L.	Bledisloe, V.

Bonham-Carter, L.	Kirkhill, L.
Borthwick, L.	Kissin, L.
Boston of Faversham, L.	Lane, L.
Bottomley, L.	Listowel, E.
Bridge of Harwich, L.	Llewelyn-Davies of Hastoe, B.
Brightman, L.	Lloyd of Hampstead, L.
Brigstocke, B.	Longford, E.
Brooks of Tremorfa, L.	Lovell-Davis, L.
Buckmaster, V.	Lowry, L.
Callaghan of Cardiff, L.	Lytton, E.
Campbell of Alloway, L.	Macaulay of Bragar, L.
Campbell of Eskan, L.	McCarthy, L.
Carmichael of Kelvingrove, L.	Macleod of Borve, B.
Carnegy of Lour, B.	McNair, L.
Carnock, L.	Mais, L.
Carter, L.	Marsh, L.
Castle of Blackburn, B.	Mayhew, L.
Cledwyn of Penrhos, L.	Mersey, V.
Cocks of Hartcliffe, L.	Mishcon, L.
Colville of Culross, V.	Monkswell, L.
Cork and Orrery, E.	Monson, L.
Craigavon, V.	Monteagle of Brandon, L.
Craigmyle, L.	Morris of Castle Morris, L.
Dacre of Glanton, L.	Morris of Kenwood, L.
Darcy (de Knayth), B.	Morton of Shuna, L.
David, B.	Munster, E.
Dean of Beswick, L.	Murray of Epping Forest, L.
Derwent, L.	Nathan, L. [Teller.]
Donaldson of Kingsbridge, L.	Nelson, E.
Donaldson of Lymington, L.	Nicol, B.
Donoughue, L.	Northfield, L.
Dormand of Easington, L.	Ogmore, L.
Elibank, L.	Oram, L.
Erroll, E.	Park of Monmouth, B.
Ewart-Biggs, B.	Pennock, L.
Ezra, L.	Peston, L.
Falkender, B.	Pitt of Hampstead, L.
Falkland, V.	Prys-Davies, L.
Fisher of Rednal, B.	Quinton, L.
Foot, L.	Rankeillour, L.
Gainsborough, E.	Rea, L.
Gallacher, L.	Rees, L.
Galpern, L.	Richard, L.
Geddes, L.	Ritchie of Dundee, L.
Gladwyn, L.	Rochester, L.
Goff of Chieveley, L.	Rodney, L.
Graham of Edmonton, L. [Teller.]	Russell, E.
	Ryder of Warsaw, B.
Greenway, L.	Sainsbury, L.
Grey, E.	Saltoun of Abernethy, Ly.
Griffiths, L.	Scanlon, L.
Hailsham of Saint Marylebone, L.	Seear, B.
	Sefton of Garston, L.
Halsbury, E.	Serota, B.
Hampton, L.	Shaughnessy, L.
Hanworth, V.	Slim, V.
Harris of Greenwich, L.	Stallard, L.
Hatch of Lusby, L.	Stedman, B.
Havers, L.	Stockton, E.
Henderson of Brompton, L.	Stoddart of Swindon, L.
Hertford, M.	Strabolgi, L.
Houghton of Sowerby, L.	Taylor of Blackburn, L.
Howe, E.	Tenby, V.
Howie of Troon, L.	Terrington, L.
Hughes, L.	Thomas of Gwydir, L.
Hunt, L.	Thomson of Monifieth, L.
Hutchinson of Lullington, L.	Thurlow, L.
Hylton, L.	Tordoff, L.
Hylton-Foster, B.	Tryon, L.
Irvine of Lairg, L.	Underhill, L.
Jacques, L.	Varley, L.
Jay, L.	Wedderburn of Charlton, L.
Jeger, B.	Wharton, B.
Jenkins of Putney, L.	White, B.
Kilbracken, L.	Wigoder, L.
Kilmarnock, L.	Wigram, L.
Kinloss, Ly.	Wilberforce, L.

Williams of Elvel, L.	Winterbottom, L.
Willis, L.	Worcester, Bp.
Wilson of Langside, L.	Wyatt of Weeford, L.
Winchilsea and Nottingham, E.

NOT-CONTENTS
Alexander of Tunis, E.	Hives, L.
Arran, E.	Hooper, B.
Astor, V.	Jeffreys, L.
Auckland, L.	Kemsley, V.
Balfour of Inchrye, L.	Kimball, L.
Belhaven and Stenton, L.	Kinnoull, E.
Belstead, L.	Knollys, V.
Blake, L.	Lauderdale, E.
Blatch, B.	Layton, L.
Boardman, L.	Long, V.
Boyd-Carpenter, L.	Mackay of Clashfern, L.
Braybrooke, L.	Mancroft, L.
Brookeborough, V.	Massereene and Ferrard, V.
Brougham and Vaux, L.	Merrivale, L.
Butterworth, L.	Monk Bretton, L.
Caithness, E.	Mottistone, L.
Campbell of Croy, L.	Mountevans, L.
Carr of Hadley, L.	Mowbray and Stourton, L.
Cavendish of Furness, L.	Murton of Lindisfarne, L.
Cockfield, L.	Nugent of Guildford, L.
Coleraine, L.	Orkney, E.
Colnbrook, L.	Pender, L.
Constantine of Stanmore, L.	Platt of Writtle, B.
Cox, B.	Reay, L.
Davidson, V. [Teller.]	Renton, L.
Denham, L. [Teller.]	Rochdale, V.
Dudley, E.	Salisbury, M.
Elliot of Harwood, B.	Savile, L.
Ferrers, E.	Seccombe, B.
Foley, L.	Skelmersdale, L.
Fraser of Carmyllie, L.	Strathmore and Kinghorne, E.
Fraser of Kilmorack, L.	Sudeley, L.
Gainford, L.	Trumpington, B.
Gardner of Parkes, B.	Ullswater, V.
Glenarthur, L.	Vaux of Harrowden, L.
Gridley, L.	Waddington, L.
Harmsworth, L.	Wise, L.
Hemphill, L.	Wolfson, L.
Henley, L.	Young, B.
Hesketh, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.33 p.m.

Lord Nathan moved Amendment No. 69A:

After Clause 22, insert the following new clause: ("Court's duty on passing sentence of life imprisonment

.—(1) Where a court sentences a person to imprisonment for life it shall state in open court—

1. (a) its reasons for passing that sentence; and
2. (b) the sentence of imprisonment the court would have passed ("the penal term") if it had not been open to it to pass a sentence of imprisonment for life and it had not taken into account the risk of serious harm to the public if the offender were to be released after a determinate number of years' imprisonment.

(2) The penal term shall be subject to appeal against sentence in the same manner as the sentence of imprisonment for life actually passed on the offender.").

The noble Lord said: In moving Amendment No. 69A I shall also refer to Amendments Nos. 69B to 69D, 76A to 76F and 77A to 77C which have been grouped together. That is a convenience for debate but I should state that Amendment No. 69A which relates to judicial procedures to fix the penal term and Amendments Nos. 76A, 76B and 76D relating to judicial procedures as to release are not mutually dependent and should therefore be decided upon separately. Amendments Nos. 77A to 77C are consequential.

Amendment No. 69A implements one of the recommendations of the Select Committee. The clause introduced by the amendment would apply whenever a court awards a life sentence, whether for murder or for any of the other offences for which life imprisonment is the maximum. These include, in England and Wales, manslaughter, armed robbery, arson and some sexual offences and, in Scotland, all common law crimes. Approximately 20 per cent. of life sentences are imposed for offences other than murder.

There are two main sets of circumstances which justify the imposition of a life sentence for murder and both may be present in any particular case. The life sentence should be available both for especially heinous murders and for those where there would be a degree of uncertainty about the risk, by reason in particular of a prisoner's mental condition, of releasing him at the end of a determinate sentence. Those circumstances conform broadly to the criteria for imposition of life sentences for crimes other than murder which presently prevail.

Where a life sentence is awarded the judge should not only specify his reasons for imposing that sentence rather than a determinate sentence but should also specify in open court the period of years which he considers necessary to satisfy the requirements of retribution and deterrence; namely, the penal term. When the judge imposes a life sentence on the ground of risk the penal term will be the period of years he would have imposed in the absence of that factor. Where he imposes a life sentence because of the heinousness of the offence the penal term should be the period of years he would have imposed if the life sentence were not available to him. The reason why the judge should not take account of the risk of serious harm to the public is because that risk is taken care of by the nature of the life sentence itself.

The penal term set by the judge should not be subject to revision by Ministers but it should be subject to appeal by either side, as in the case of sentences for all serious crimes since 1988. That judicial and open process for setting the penal term would be a substitute for the present system, which has given rise to much criticism.

Life imprisonment does not usually mean imprisonment for the remainder of the convicted offender's life. The procedures currently used in England and Wales, which have been much canvassed today, are that after a mandatory life sentence has been awarded in cases of murder the trial judge, through the Lord Chief Justice, writes privately to the Home Secretary recommending the period of detention necessary to meet the requirements of retribution and deterrence. Neither the public nor the prisoner is or ever becomes aware of the contents of that letter. The Home Secretary or, as the select committee was informed to its surprise, a junior Minister determines the period of detention, often referred to as the tariff.

The select committee was given evidence by the Home Office that during the six months from April to September 1988 in 63 of 106 mandatory life cases the Home Secretary set a higher tariff than that privately indicated to him by the trial judge. In 34 cases he set the same and in nine cases a lower tariff. Further statistics provided by the Home Office, which were referred to by the noble Lord, Lord Harris, in his earlier remarks, indicate that changes of a similar character were made in 1984 and 1986 although the figures are somewhat different.

Neither the Home Secretary nor a junior Minister has heard the evidence or seen the witnesses. The procedure is carried out in secrecy, not only as regards the judge's recommendation but also as to the reasons for the tariff decided upon by the Home Secretary. It is therefore impossible to know whether there is any degree of consistency as between one prisoner and another. That inevitably leads to a sense of dissatisfaction and injustice, not only among the public but among prisoners themselves who are left in a state of total ignorance.

It is not a system which can be modified or tinkered with. It requires radical change; hence the provisions of the amendment. These place responsibility for setting the penal term with the trial judge in open court where counsel on each side can be heard on the matter and the decision is made in the open so that consistency and justice between one prisoner and another will be in the public domain. That decision will be open to appeal by either side, as it has been since 1988 in the case of sentences for all serious crimes. The danger, perceived by some, of too lenient sentences will then be open to review. It is perhaps strange to make that point as much criticism of the judiciary is directed to the too long prison sentences which judges award rather than the fact that their sentences are too lenient.

I believe that this procedure is correct. As the grouping has taken place and as it may assist in abbreviating the debate, I shall now turn to the quite separate amendment relating to release decisions. However, I should say at this point that the amendment to which I have so far referred stands on its own feet and is not dependent on that related to release decisions. Nor is the amendment relating to release decisions dependent on the amendment to which I have just referred. I now refer to Amendments Nos. 76A, 76B and 76D, all of which relate to the proposed Life Sentences Review Tribunal. They would implement the recommendations of the select committee relating to release decisions for those serving life sentences.

At the expiration of the penal term the question whether the prisoner should be released or further detained rests upon a consideration of whether the prisoner would present a risk of reoffending on release. The select committee considered that the decision should be an entirely judicial one in which the Home Secretary and the Parole Board should not be involved. We considered that the court system is not well adapted to consider those matters and therefore recommended that a judicial tribunal should be established to consider life sentence release and recall decisions after the expiry of the penal term. The tribunal should be composed of a High Court judge, a consultant psychiatrist and a chief probation officer. That point is dealt with in Amendment No. 76D and would be incorporated in a new schedule.

Paragraph 8 of that new schedule provides that the Lord Chancellor may make rules of procedure by statutory instrument. The Committee will note that, under paragraph 8(2) of the new schedule, the rules may make provision for providing to the prisoner copies of documents relevant to his case and relevant oral information except when the tribunal considers that it would not be in the public interest to do so.

Further, the rules may make provisions for the tribunal to furnish reasons for its decisions. Those provisions tie in with those which would be in the new clause in Amendment No. 76B, particularly subsection (5) which prescribes that the prisoner shall have certain rights. Those would include making representations to the tribunal and being legally represented, and that he should be given information to enable him to exercise those rights effectively. The Committee will know that at present, under the release procedures, the prisoner has none of those rights in respect of the Parole Board or the Home Secretary.

Under Amendment No. 76B, the Home Secretary would be bound to refer the case of every life prisoner to the tribunal for review not later than two years before the expiry of his penal term. The tribunal may direct the release on licence of a life prisoner convicted of murder—but only on licence in cases of murder—so decisions relating to the release of murderers are, as at present, that release can only be on life licence. That licence can be revoked, as at present, by the Secretary of State who in that event would refer the recalled case to the tribunal for further consideration. At present, the Secretary of State may recall a prisoner released on licence and must refer the case to the Parole Board, so the position is not radically different in that: respect.

If the tribunal determines not to direct the release of a life prisoner his case must be referred back to the tribunal for further consideration within a maximum period of three years. The object of that is to ensure the continued detention of the prisoner after the penal term is regularly reviewed, as required by the European Convention on Human Rights.

It seemed appropriate and convenient, while dealing with those provisions relating to life prisoners convicted of murder, to deal at the same time with procedures relating to the release of life prisoners convicted of an offence other than murder, particularly in the light of the condemnation of the United Kingdom by the European Court of Human Rights in the case of Thynne and others and the earlier case of Weeks.

Therefore, in the context of life prisoners convicted of an offence other than murder we provide in the amendment that the tribunal may direct, under Clause 2(b) in Amendment No. 76B, that he be released on licence or unconditionally and, in the case of such life prisoners, may direct the length of time that the licence is to remain in force. The Committee may wish to look particularly at subsection (7) in that context. If the tribunal gives no direction as to the length of the licence it shall review the licence at three yearly intervals and either terminate the licence or direct the time for which it is to remain in force. The purpose of the provisions relating to life prisoners is to ensure that their further detention is kept constantly under review.

I emphasise yet again that the provisions are not applicable to life prisoners convicted of murder because the licence will continue for life and the prisoner will therefore be subject to recall throughout his life, as at present. The amendments will bring under judicial control functions presently exercised in his discretion by the Home Secretary. They will bring the law and practice in this country into conformity with the European Convention on Human Rights. I understand that I should not move the other amendments at this stage. I shall confine myself to moving Amendment No. 69A so that it is possible to move the other amendments at the appropriate time. I beg to move.

5.45 p.m.

The Earl of Longford moved, as an amendment to Amendment No. 69A, Amendment No. 69B:

After Clause 22, Line 7, leave out from; "life") to end of line 9.

The noble Earl said: I rise to offer general support for what may be called the Nathan principles—the principles that were unfolded in the committee's report and presented by the noble Lord, Lord Nathan, and his allies. If those general ideas were given effect to, life prisoners would be treated more humanely. I do not say that they are all treated badly now, but in my experience some are treated abominably. To anyone who asks me whether I speak up for the victim, perhaps I may point out that I first proposed a Motion in favour of the victim 25 years ago and that I introduced a Bill which had a Second Reading here 10 years ago. If anyone in the Chamber can say that they have done more for victims than I have, let them inform me of it. There is no clash, in my view, between trying to do the Christian thing on behalf of prisoners and victims.

In the amendments I deal with that residue of prisoners who are given life sentences under the arrangements which I hope are likely to be established. I shall not therefore deal with all those who receive determinate sentences. I shall deal only with those who receive life sentences. I do not intend to cover the cases of those who might be unjustly convicted; nor do I intend to examine the cases of those who are, or may be thought to be, mentally disordered. These are important issues, but they do not arise now. I take for discussion, to focus thought, the prisoners who have committed grave crimes, perhaps very grave crimes, which under the new arrangements will attract life sentences. Some people may say that such offenders are beneath consideration. I hope that that will not be said by many in this Chamber. A few old-timers may remember Lord Chief Justice Goddard saying in the 1950s debates on capital punishment that such a man should be destroyed. That view may be held in some quarters. For perhaps rather perverse reasons I read the Sun newspaper every day and that may be the view of many of those who write for that newspaper. I am aware that that view exists. I regard it with absolute horror.

I thought I heard in the debate two days ago a noble Lord refer to prisoners in general as villains. I thought I heard him say it twice, but my hearing is somewhat defective. If we are to speak of prisoners as villains, we are a long way from civilised discussion. However, I do not believe that that is the general attitude of this Chamber.

Most people, whether Christians, humanists or whatever, regard every prisoner, even one who has done terrible things, as of infinite worth because he is a human being. In Christian terms he is infinitely dear to God. But even if we leave God out of it and consider the matter simply in humanist terms, he is someone infinitely precious. Most of us, again whether Christian or humanist, think of them as sinners. The attitude that we are the goodies and they are the baddies who are to be trodden under is not one which will commend itself to the Chamber.

Nevertheless, I talk now of people who have done terrible things. For the sake of argument I refer to men who have committed several murders. I do not refer to any individual although I have known many murderers. Let us assume someone has committed a number of murders. I agree that in that case a life sentence is the only sentence which is appropriate in human terms.

I am ready to agree that when the penal term is concluded and that man comes up for judicial review he could still be regarded as too dangerous to release. In theory it could happen—although I do not personally believe that it ever has happened—that such a person time after time would come before the judicial tribunal and be considered too dangerous to release. That would certainly apply to a number of patients in Broadmoor, for example. Admittedly, there are some people who are too dangerous ever to release. I know one who was in prison for 20 years. He is no longer a prisoner but a patient in a special hospital; he does not expect ever to be released. Such people exist.

However, let us leave aside the mental cases. In theory it could happen that when the time arrived for someone who had done terrible things to come before a tribunal it was found that he was too dangerous to release. I am ready to accept that as an outside possibility, but it is guarded against by the arrangements for the tribunal. The whole question of dangerousness is covered by the tribunal. So we are left asking ourselves what should be the penal period before the man or woman is allowed to go before the tribunal. This is a matter over which people will differ as to the number of years. Personally, when I go before Saint Peter, which is likely to happen to me rather sooner than to most Members of the Committee that I see around me—perhaps in the almost immediate future—and he asks, "What did you do down there?", if I were to reply, "I played my part in sending a man to prison for many more years than 20", then I should expect to receive an even longer spell in purgatory than would normally come my way. In other words, I should be ashamed of myself.

We are laying down rules which will be applied by judges and in that sense we are making the decisions ourselves. We have to ask ourselves: do we honestly think that we ourselves are so virtuous that we are entitled to say that someone else is so bad or wicked that he or she must serve 20 years before even being allowed to go before a tribunal that will decide whether he or she is dangerous. I view that with contempt. I do not despise any human being. I am not in a position to do so. But I despise certain positions, and I view that one with contempt. I therefore believe that at whatever period one places the exact number of years I would say 20 years but others may have a different view—there must be a reasonable limit. After that limit, if the question arises of whether the man is dangerous, then the tribunal in a judicial spirit should decide it.

There are two other amendments tabled in my name. One seeks to remove words from the second part of the earlier amendment. Possibly it is simply my lack of intelligence. If so, it is a lack of intelligence shared fairly widely. I asked a number of people about it. None of them could make head or tail of the latter part of the amendment. I see one of the greatest of the Law Lords nods his head. If he cannot understand it I am quite certain that I am not able to do so. Perhaps we would be happier without those words. It would be a simple, straightforward issue. One asks how much the crime merits and after a certain number of years the tribunal will decide whether it is safe to let the person out.

Perhaps I may say without offence that on some programme the other day I was asked whether I believed that there were evil men or women. I replied no; I personally did not think that there were evil men or women but that there were some men and women who did evil things and that we had to protect ourselves against them. I think that in this country we are, possibly in a high-minded way, doing something which in my eyes is evil. We are keeping people in prison for 30 years. By chance I met someone in prison the other day who had been there for 50 years. I could hardly believe it, but it was true. We are keeping people in prison, to my personal knowledge, for 30 years at least, without there being any chance for them to make representations to anybody and without any reasons being given. I regard that as wicked.

I move the amendment in that spirit. I am not dogmatic about the number of years being 20. It seems to me an outside limit but it can be altered. Perhaps my other proposals can be improved upon at this or some later stage. I stand absolutely upon the principle that if we are to have a tribunal we must know when it will meet and that it must meet within a foreseeable time. I beg to move.

Lord Harris of Greenwich

I take it that we are discussing at the same time the other amendment in the name of the noble Earl. It is not for me to speak on behalf of the select committee. All I can say is that we examined with some care whether a maximum should be put upon the penal term. We came to the conclusion that it should not. That is my view. I do not think that it would be appropriate for the maximum of the penal term to be 20 years. One has only to look at the character of some of the possible offences which might have to be examined to see that that is clear.

Let us take a case which we all know—the Lockerbie tragedy. Could one say in the case of an incident in which 200 or more people lost their lives that the maximum penal term would be 20 years? That would be wholly unacceptable. For that reason, speaking entirely for myself, I should be opposed to it.

Perhaps I may deal with one other matter at the same time. As I understand it we are now discussing both the noble Earl's amendments in the context of the amendment moved by the noble Lord, Lord Nathan. As the noble Lord pointed out in his speech, one benefit would be that the creation of the tribunal would lead to the implementation of the judgment of the European Court of Human Rights in the case of Messrs Thynne, Wilson and Gunnell. That decision was made at the end of last year but all concerned, including those in the Home Office, knew perfectly well on the basis of their experience before the European Commission of Human Rights that the Government were bound to lose their case. Those three men were awarded sentences of life imprisonment for offences other than murder. The European Court of Human Rights held that the decision on their release would be a matter for a judicial tribunal.

As I understand it, when pressed upon the matter in the House of Commons the Government indicated that they had not had time to consider the matter adequately. Some of these men have now been held in custody for very substantial periods of time. One of them is 74. It seems to me wholly unreasonable that months after a decision of the European Court of Human Rights the House of Commons suggested that it was too soon to make a decision. That decision would not concern the mens's release; a tribunal might well decide not to release them because of their mental conditions. It seems quite wrong that where a clear decision has been taken by the European Court of Human Rights, and where we have a treaty obligation to implement those decisions, that in the House of Commons, the Government's position was that it was too soon to legislate.

The creation of a tribunal will deal with the situation arising from those three life sentence prisoners, none of whom was convicted of murder. I welcome the amendment.

6 p.m.

Lord Stallard

I briefly support what has been said by previous noble Lords. I speak not from a legal standpoint but from my experience with and interest in these cases. It may be known that for many years I have corresponded with various Home Secretaries in different governments about transfer of prisoners from one prison to another in order to minimise the suffering of relatives who have to travel long distances; and for reasons associated with benefits, social security passes, warrants and so on. I have come across the problems of consistency which were mentioned by the noble Lord, Lord Nathan.

In the Northern Ireland situation, for instance, I know a number of prisoners during whose sentences the criteria for parole applications have been changed at least six times since 1973. In one case six prisoners received the same sentences at the same court at the same time by the same judge. Five of them have been released at different times under different criteria. The five having been transferred to another prison to be near their relatives, and so on, were released. The sixth prisoner sought parole all the time for the same reasons under the old criteria. Because new criteria are still in operation from last year, he has been caught by the latest criteria. His next date for review will be 1995. That means that by the time his appeal is dealt with and he has a release date he will have served almost 25 years. There was no mention in public of how long the service was to be. That is the second point with which I agree. It should be stated publicly at the time. People should know the tariff. "Tariff" is the word used mainly in these considerations. The Lord Chief Justice assessed the tariff for one of the prisoners, and that operated. I assumed that the same assessment applied to the others but I have been unable to find out. There is no public knowledge. It is almost like a raffle.

It creates a certain incredibility and takes away the confidence of people in the system of justice if such changes can occur at the whim of someone far away and for whatever reasons. For a number of reasons it may be necessary to keep one fellow in prison longer than another; or, because circumstances outside might be dangerous, one person may be re leased but not another. But nobody is told why. It is just stated, "Because of changing criteria you will not now be released. Your next date for review is 1995, and God knows what will happen after that".

I do not believe that that is good enough. I support the noble Lord's amendment.

Baroness Platt of Writtle

I support Amendment No. 69A. I do not refer to the other grouped amendments. I agree with the noble Lord, Lord Nathan, that they should be considered separately. I ask the noble Lord the Lord Privy Seal to consider the matter sympathetically.

For me, the amendment has the great attraction of justice being seen to be done. The sentence is stated in open court with reasons and is subject to appeal. In placing the case before a higher court, the prisoner has to face the possibility of a stiffer sentence as well as the possibility, and the hope in his mind, of greater leniency. Whether appealing or not, the prisoner knows where he or she stands over the minimum term and the reasons why that term has been set. After that the matter of risk has to be considered either, as at present, by the Home Secretary or by the judicial tribunal suggested in future amendments. The matter of risk is, to a certain extent, in the prisoner's own hands to demonstrate reform and therefore on release to be deemed free of risk in particular after the initial period of supervision. Then he or she may with good behaviour be free on licence for the remainder of their lives.

I know that the amendment is connected with the decision of the European Court of Human Rights and the subsequent action of the Government in considering their response to that decision. Whatever action is finally contemplated, I hope that my noble friend will consider sympathetically the suggestion outlined in Amendment No. 69A as it stands in its entirety with its strong sense of natural justice.

Lord Morton of Shuna

I too support the amendment. As a member of the select committee, the feeling that we experienced in every prison we visited was of the uncertainty and lack of knowledge about what was happening which added to the difficulties in the prison. We gained that feeling from prison governors, prison officers and prisoners. They did not know what was happening. Prisoners did not know when they were to get out. They did not know the Home Secretary's recommendation.

I suggest it is appropriate that those matters should be known by the prisoner. There is a move now to openness in judicial decisions and in decisions generally. I suggest that that must be encouraged. The concept has been published recently by the governor of one of the biggest Scottish prisons. Dr. Coyle, the Prison Governor of Shotts and previous governor of Peterhead Prison has just had published a book in which he states: Justice is a delicate flower; justice for those in prison is the most delicate flower of all. One of the basic criteria for justice is that it should not be arbitrary, that it should be based on premises which are open to scrutiny. We face a real danger that many of the processes in our penal system are not open to that scrutiny".

The select committee found that to be the case in particular in relation to decisions about how long those sentenced to life should serve and the deep feeling of injustice between one life sentencer and another that A got out and B did not. If the dates were given in open court, and were open to appeal, it would be a much better system.

I turn to Amendment No. 69B tabled by the noble Earl, Lord Longford. I am not sure what its effect would be. Let us suppose that the relevant words have been removed from Amendment No. 69A. If I were then to be sentencing someone to life imprisonment I should have to announce the sentence of imprisonment that I would have passed if it had not been open to me to pass a sentence of imprisonment for life. By taking out the reference to danger I should have to consider what sentence was appropriate considering the prisoner's danger to the public. I believe that would have precisely the opposite effect to what I suspect the noble Earl wishes to achieve.

I have in mind the case of a man convicted of murdering old ladies after raping them. Psychiatric evidence showed that he had sexual urges which would continue until fairly late in his life. He was then 20 years of age. If in sentencing that person under the proposed set-up I took that matter into account I should have to pass a sentence of 40 or 50 years because I could not take into account the danger. However, I must take into account the danger; I could not ignore it. Therefore, the noble Earl's amendment appears to achieve precisely the opposite of that which I presume he intends—

The Earl of Longford

I understand what the noble and learned Lord is saying. However, with his great legal acumen, and assisted by his noble and learned friend Lord Wilberforce, can he not provide at the next stage a better and more intelligible form of wording which would be acceptable to most Members?

Lord Morton of Shuna

I have no doubt that my noble and learned friend could make anything more intelligible to anyone. I am not certain that I can. Perhaps if the word "if" were inserted in line 7 before the word "it" the issue would be clearer. I give the Committee no promises of clarifying the language. In general, I strongly support the amendments.

Lord Lane

I venture to add a personal note in respect of Amendment No. 69A. I must deal with all life sentences, both mandatory and discretionary, and with the prisoners who are about to be released. All those cases come through my hands. The task involves a consideration of between 300 and 400 cases per year. I know that many judges agree with me in feeling most unhappy about the way the system operates behind closed doors. The only advantage of my considering the cases is to try to achieve consistency in the length of time which people must stay in prison for committing various crimes. It is a consistency that I should rather not have to operate. The procedure should be carried out openly, but that is not the case.

Lord Ackner

I support the amendment. As a one-time advocate I point out to the Committee the difficulty in which the advocacy now finds itself. The passing of an automatic life sentence makes mitigation purposeless. If there is to be a life sentence that is an end of the matter. However, there has grown up a practice that some judges, conscious of the fact that the present situation is highly unsatisfactory, allow mitigation. However, the prisoner does not know the impact of his counsel's advocacy upon the court, nor does counsel know. It is an absurdity that occasionally one is given the opportunity to put forward mitigation without knowing the consequences. The proposal merely brings reality into the process of this class of sentencing which, as it now stands, is totally unreal.

6.15 p.m.

Lord Richard

The noble and learned Lord, Lord Ackner, was right in making those comments. It is a sterile exercise when at the end of a case where one's client has been convicted, and one knows that he is to be sentenced to life imprisonment, the judge says, "Do you have anything to say to me in relation to what I might be writing to somebody hereafter?". One's answer might then be, "Please do not be too hard on him", or "It was not a particularly dreadful murder", or "He does not have a bad record". One then sits down having no idea whether the statement had any impact on the judge or what was in his mind. The exercise is futile and I am glad that the noble and learned Lord, Lord Ackner, drew the Committee's attention to it.

The EC is fond of producing words. A word that it produced which was new to me was "transparency". I believed that it was connected with stamps but now know that it is a concept of viewing Executive actions, or indeed those of anyone, so that they are visible, accountable and can be scrutinised. The arguments in favour of greater transparency in the operation of this part of the criminal justice system appear to be overwhelming. I do not propose to repeat them.

I conclude with a quotation from the noble and learned Lord, Lord Hailsham, made in 1966 in another place when he was Quintin Hogg. The Parole Board had first been set up and he was commenting on whether its proceedings would involve a sufficient element of natural justice. He said: Natural justice involves this more than anything else: that where a man's most intimate rights are to be adjudicated upon … he had the right to be heard … If there were any dispute between him and the authorities which had not solved itself on the record, then he had a right to appear before his judges … That essentially introduces into the proceedings a quasi-judicial element, because it involves the hearing of two sides".

At present sentencing decisions are made by Ministers behind closed doors for reasons that we do not know and in respect of which the defendant is not entitled to he represented or hardly entitled to be informed.

Lord Campbell of Alloway

I sincerely ask my noble friend the Leader of the House to keep an open mind about Amendment No. 69A. I am not speaking to any other amendment. I support without qualification everything that has been said in support of the amendment.

Perhaps I may draw the attention of my noble friend the Leader of the House to the Second Reading debate when the noble and learned Lord the Lord Chief Justice said: There is no doubt that the present system is badly in need of reform. When passing a life sentence the trial judge should he able to announce in open court the tariff or penal period that he considers to be necessary for punishment and deterrence". [Official Report, 12/3/91; col. 100.]

I need not go on. This is the kind of amendment about which the Government should think two or three times before merely ignoring and rejecting.

Lord Hutchinson of Lullington

I wish merely to add to what was said by the noble and learned Lord the Lord Chief Justice. I am sure that he had too much modesty to make the comment himself. The present system imposes a burden upon him in office which is totally unacceptable. In addition to other enormously responsible duties it is impossible for the Lord Chief Justice to have to spend an incredible amount of time going through between 300 and 400 cases per year and consider them as he does with great care and responsibility. I suggest that that is a system of administration which is crazy in the circumstances. It makes the office of Lord Chief Justice, which is already over-burdensome, almost impossible to bear.

I should like to ask the noble Lord the Leader of the House whether there is a single reason why the Government do not want an accused person to know what is the length of the penal element in the sentence. Is there any conceivable reason for that person not to have the right first to know it and secondly to dispute it?

Lord Waddington

Both the select committee report and the European Court judgment raise issues every bit as difficult as those which we discussed earlier in relation to mandatory life sentences for murder. Indeed, it is not possible to separate entirely the two matters. The link is the need for the public to be able to have confidence in the willingness and ability of the criminal justice system to deal effectively with people who may have committed the most appalling crimes and who may he so dangerous that they need to be locked away from society for an indefinite period.

The issues in the report and the judgment are so important and complex that it would not be right for the Government to rush into hasty measures. I certainly cannot accept the strictures of the noble Lord, Lord Harris of Greenwich, and his complaint —and I believe I heard him aright—that we have not yet put legislation on to the statute book.

Lord Harris of Greenwich

I made two suggestions. First, well before the end of last year when this matter came before the European Court of Human Rights, the Government knew that they were going to lose the case. That was clear from the European Commission's decision on the matter.

Secondly, this Bill has been presented in Parliament. It follows that this is an opportunity to change the law. One of the men who won his case at Strasbourg is 74 years old. Is it not right that we should acknowledge that we shall accept the judgment of the European Court and implement it?

Lord Waddington

There can be no question of our ignoring the implications of the European Court's judgment. However, I do not believe that the noble Lord suggests seriously that it is always easy to know what is the right way in which to give effect to the decision of the European Court.

Also, when saying that there is no question of our ignoring the implications of the judgment, we must not over-dramatise its effect. Our procedures in relation to discretionary and not mandatory life sentences were held to be flawed. However, there was no suggestion that the outcome would have been different in the cases in question if a procedure more in keeping with the convention had been followed.

As with all European Court judgments, it tells us very clearly what is wrong with our procedures but does not tell us what we must do to put them right. That is clearly a matter for government and Parliament. We must reconcile a number of potentially conflicting objectives in responding to the judgment.

First, any new procedures which we introduce must not only be scrupulously fair to the offender but must also be compatible with the framework and principles of our domestic law. The idea that the judiciary should take responsibility for decisions about offenders after they have been sentenced is completely new in the law of this country and we must think through its implications.

Secondly, the new arrangements must give to the public adequate protection from offenders who may have committed absolutely dreadful crimes. The public and the victims of crime must feel confident that their interests, as well as those of the offender, are being respected. Therefore, this matter cannot be sorted out by a few quick strokes of the legislative pen. The task requires real care and, if we do a botched-up job, we may regret that later.

At the heart of the matter is the difficult question of what should be the role of the Minister and what should be the role of the judge when it comes to deciding when a life sentence should be reviewed and when a person serving a life sentence should be released on licence. I dare say that a good number of those who have supported diminution of the ministerial role do that in the belief that it will lead to the release of life sentence prisoners rather earlier than they are now released and earlier than Ministers consider appropriate.

Indeed, that is reflected in the criticisms in the select committee's report of the use by Home Office Ministers of the power in their hands to set longer tariffs for determining when cases should first be reviewed—longer tariffs than those recommended by trial judges and the Lord Chief Justice. However, we must remember that whether or not Ministers' views in these cases are right or wrong, Home Office Ministers bear a heavy responsibility. As I said in the earlier debate, the Home Secretary bears the ultimate responsibility for public safety and the Committee will forgive me when I repeat that the House of Commons has repeatedly voted against capital punishment for murder on the understanding that murderers would stay in prison for as long as Ministers thought necessary.

It may be that the House of Commons and public opinion would feel as much or greater confidence in a new system which gave less responsibility to Ministers and more to the judiciary and which perhaps resulted in life sentence prisoners being released earlier than they are now. However, the need to maintain public confidence is so important that any proposals for change should be subject to proper consultation and debate, not just in this Chamber and another place but among the public at large.

The public will rightly be concerned about the implications of change and must be properly consulted about and prepared for it. Slipping in amendments to a Criminal Justice Bill at a late stage of its passage is not the right way to go about that.

However, it is not just a question of whether it should be the Executive or the judiciary which should take decisions about the review of these cases and about release. As regards the cases which cause the greatest anxiety—namely, the worst murderers—the issue is as much about when a decision on release should be taken as about who should take it.

I must ask my noble friend Lady Platt this question. Is it right that a final decision as to the penal term should be taken at the time of trial? Can either a judge, or a Minister for that matter, be confident, when a person is convicted now of the worst type of murder, that 20, 30 or even 50 years on society will feel that the crime has been adequately punished and, if it is safe to do so, that the murderer shall be released into the community? Those are very difficult questions. Therefore, I do not accept the proposition that it is self-evident that the judge at the time should in a life sentence case say precisely what it is then thought is the right punishment to be awarded.

The noble Earl, Lord Longford, in his amendments proposes that the penal term should be no more than 20 years and that parole should operate. I have said something about that already. However, if we have in mind something like the scheme of parole which would be implemented if this Bill were to pass into law, that would mean that a person would have to be considered for release after 10 years. I say again, such a move would be a body blow to the credibility of the life sentence system in the eyes of the public.

Against that background we shall need to resolve a number of difficult questions in order to devise satisfactory arrangements for the future which comply with the European Court judgment. The concept of dividing up a sentence into successive elements—retribution, denunciation, protection and so on—is absolutely new to English law. We shall need to think carefully about whether, and if so how, that should be reflected in our legislation and procedures.

Then again, reverting to what was said earlier, let us not forget that the European Court judgment applies only to discretionary life cases. The court applied different reasoning to mandatory life sentences. For the latter, it concluded that the lawfulness of detention for life was settled at the outset by the passing of the life sentence and did not fall to be reviewed by a judicial body once a certain part of the sentence had been served.

I remind the Committee that that differs from the view taken by the select committee, which suggests a review in the case of all life sentences. The implications of that difference of view between the European Court on the one hand and the select committee on the other, must also be carefully considered. It is not self-evident that there should be the same scheme for all life sentence cases, whether they are life sentences in murder or other cases. If we are to shift the burden of decision making, at least for discretionary cases, from Ministers to the judiciary, we must then tackle a series of practical questions. The amendments before us amply demonstrate the range and complexity of those.

I congratulate the draftsmen on the thoroughness with which they have gone about the job. However, I am told by officials that there are other questions which are not covered. For example, would there be any role for the Secretary of State in the making of representations to the tribunal about the implications of the prisoner's release for public safety and public confidence in the life sentence system? Would there be a right of appeal against the tribunal's findings either on the part of the prisoner or on the part of the Secretary of State?

There is therefore a range of fundamental and complex questions to be considered. I believe it would be quite wrong to rush into legislation before we have identified suitable proposals to deal with both the issues of principle and the practical questions, and have conducted proper consultations about the proposed solutions. The life sentence system is under criticism from a variety of points of view and in a variety of respects. It is essential to make changes which have proper regard to all the criticisms and to create a new structure which carries the confidence of Parliament, of the judiciary, of the executive and of public opinion as well as meeting our obligations under the European Convention on Human Rights.

The judgment was received only recently. The Government make no apologies for thinking very carefully about this difficult and complex task. Moreover, the issues need to be addressed together; making piecemeal changes here and there may have unforeseen and undesirable consequences. I assure the Committee that the Government will act appropriately so that we are in compliance with the European Court judgment. However, for the reasons I have given I advise the Committee to reject these amendments.

6.30 p.m.

Lord Campbell of Alloway

Before my noble friend sits down perhaps I may ask—the noble Lord, Lord Nathan, cannot—whether he will reconsider his rather unkind suggestion that slipping in an amendment such as this at a late stage of the Bill is not the way to go about it. I have never heard that kind of charge made in this Chamber. We all dealt with the amendment. I spoke to it and at least five other noble Lords spoke to it at Second Reading. The Government have had a lot of time in which to consider it and I hope my noble friend will consider the criticism of the noble Lord, Lord Nathan, and those—not myself—who appended their names to the amendment to be wholly unjustified.

Lord Waddington

I apologise to the Committee. I perhaps could have used more felicitous language. However, the fact remains that it is not simply a question of accepting the basic suggestions made by the Select Committee in its report. We are being asked to accept a great mass of extremely detailed amendments which we are told we can be absolutely certain will do the trick; that not only will they lead to compliance with the European Court judgment but that they will also be the easiest way of knitting the new arrangements into our old practices, the easiest way of involving the judiciary in the new system and all the rest of it. That is asking a lot.

Lord Richard

Before the noble Lord sits down perhaps I could be clear about what he is saying. I believe he said that the Government accept the principle that the decision on when to release life sentence prisoners should be removed from the sole discretion of the Home Secretary—the secret exercise of his discretion as it now is—and transferred to a tribunal, whether in precisely this form or not is another matter. That tribunal would have the attributes of, first, sitting in public; secondly, allowing the defendant to be represented; thirdly, showing the defendant what the evidence against him was and, fourthly, allowing the defendant to call evidence. If the noble Lord is saying that, I shall be interested to hear his confirmation.

Lord Waddington

I am saying that the Government accept that steps must be taken; no doubt legislation will have to be introduced in order to bring ourselves in compliance with the European Court judgment.

The Earl of Longford

I believe it is my turn. Three amendments are tabled in my name. I do not propose to press the first I—may do so at another stage— because the noble and learned Lord, Lord Morton, explained that it does not mean what I think it means or what it should mean. Nobody has been able to improve upon it or explain it. Unsatisfactory as it is I do not want the main discussion, which is of great importance, to be bogged down in this semantic wrangle and I shall therefore leave that matter for the next time.

There is a reference to parole, for which I did not argue. I shall leave that over; I am not quite clear how the proposals of the noble Lord, Lord Nathan, relate to parole. I shall therefore leave that for the next time also.

However, even if I am alone on the burning deck, I stand by the amendment concerning the maximum length of the penal period being 20 years. With enormous respect to the Leader of the House perhaps I may say—with diffidence because it sounds almost patronising as he has made such a fine start as Leader of the House that I hope he will not spend too much time on future occasions telling us what public opinion is. That is not usual. We imagine we know what is going on and that is not a strong argument. I should like to hear him argue about what he believes in. Is my proposal a good one or something that the tabloids would not like?

Having said that, I am bound to stand by my amendment for the reasons I gave earlier.

Lord Waddington

I do not believe the proposal is a good one. That is my own opinion and nothing to do with public opinion.

The Earl of Longford

I beg leave to withdraw Amendment No. 69B.

Amendment No. 69B, as an amendment to Amendment No. 69A, by leave, withdrawn.

The Earl of Longford moved, as an amendment to Amendment No. 69A, Amendment No. 69C:

After Clause 22, Line 9, at end insert: ("(1A) The maximum length of penal term which a court may impose shall be 20 years.").

On Question, Amendment No. 69C, as an amendment to Amendment No. 69A, negatived.

[Amendment Nos. 69D and 69E not moved.]

[Amendments Nos. 69F to 69H had been withdrawn from the Marshalled List.]

Lord Nathan

I believe it is in order for me to comment on certain matters raised, particularly those raised by the noble Lord the Leader of the House. I do not intend to be personal in this respect, but I believe it was a little hard to regard the whole matter of Amendment No. 69A as a bodged-up job. It is not a bodged-up job and it is not a matter which arose at the last moment.

This provision follows with considerable accuracy the recommendations made in the Select Committee's report published in July 1989, which is quite a long time ago. The report evolved after one year's serious consideration. More or less weekly meetings were held throughout that period and the provision was not by any means a sudden thought. Furthermore, the whole question had been under consideration since the debates in your Lordships' Chamber in late 1987 on the previous Criminal Justice Bill, now the Criminal Justice Act 1988. So this is not a matter which is just a rabbit out of a hat. It has emerged after very serious consideration by some people with very great experience of the operation of the administration of the law and by others who came to it a little more freshly. I do not think that this matter can be regarded as something which has just come out of a hat.

As the noble Lord, Lord Campbell, said, I and others raised this question at Second Reading. I also referred in the debate on the Loyal Address to the decision of the European Court of Justice. So this matter has been considered for quite a long time. As regards its particular merits, it arises from a concern about principle; namely, whether decisions relating to the penal term which shall be served by those who are sentenced to life imprisonment shall be dealt with judicially in the open and be subject to appeal. That is the essence of what we are talking about. We are not talking about detailed questions of drafting, although I would back the drafting which is here. The question of principle is one of great consequence. We rehearsed the arguments exhaustively in the previous debate on the principle of the mandatory life sentence. This is a matter on which the opinion of the Committee should be taken.

6.41 p.m.

On Question, Whether the said amendment (No. 69A) shall be agreed to?

Their Lordships divided: Contents, 120; Not-Contents, 68.

Division No. 2
CONTENTS
Ackner, L.	Carter, L.
Acton, L.	Cledwyn of Penrhos, L
Ailesbury, M.	Cocks of Hartcliffe, L.
Airedale, L.	Cork and Orrery, E.
Alexander of Weedon, L.	Craigavon, V.
Allenby of Megiddo, V.	Darcy (de Knayth), B.
Ampthill, L.	David, B.
Ashbourne, L.	Dean of Beswick, L.
Aylestone, L.	Donaldson of Kingsbridge, L.
Bancroft, L.	Donoughue, L.
Beloff, L.	Dormand of Easington, L.
Birdwood, L.	Falkender, B.
Birk, B.	Falkland, V.
Blackstone, B.	Foot, L.
Bledisloe, V.	Gainsborough, E.
Bonham-Carter, L.	Gallacher, L.
Borthwick, L.	Galpern, L.
Boston of Faversham, L.	Gladwyn, L.
Bottomley, L.	Graham of Edmonton, L. [Teller.]
Bridge of Harwich, L.
Brightman, L.	Greenway, L.
Broadbridge, L.	Grey, E.
Buckmaster, V.	Hampton, L.
Callaghan of Cardiff, L.	Hanworth, V.
Campbell of Alloway, L.	Harris of Greenwich, L.
Campbell of Eskan, L.	Hatch of Lusby, L.
Carmichael of Kelvingrove, L.	Henderson of Brompton, L.
Carnock, L.	Hertford, M.

Houghton of Sowerby, L.	Ogmore, L.
Hunt, L.	Oram, L.
Hutchinson of Lullington, L.	Perry of Walton, L.
Hylton, L.	Peston, L.
Hylton-Foster, B.	Plummer of St. Marylebone, L.
Jeger, B.	Prys-Davies, L.
Jenkins of Putney, L.	Rea, L.
Kilmarnock, L.	Rees, L.
Kinloss, Ly.	Richard, L.
Kirkhill, L.	Rochester, L.
Kissin, L.	Russell, E.
Lane, L.	St. John of Fawsley, L.
Lawrence, L.	Serota, B.
Listowel, E.	Shannon, E.
Llewelyn-Davies of Hastoe, B.	Stallard, L.
Longford, E.	Stedman, B.
Lovell-Davis, L.	Stoddart of Swindon, L.
Lytton, E.	Tenby, V.
Macaulay of Bragar, L.	Thomas of Gwydir, L.
McNair, L.	Thomson of Monifieth, L.
Mersey, V.	Thurlow, L.
Mishcon, L.	Tordoff, L.
Monkswell, L.	Underhill, L.
Monson, L.	Wharton, B.
Morris of Castle Morris, L.	White, B.
Morris of Kenwood, L.	Wigram, L.
Morton of Shuna, L.	Wilberforce, L.
Munster, E.	Williams of Elvel, L.
Murray of Epping Forest, L.	Willis, L.
Nathan, L. [Teller.]	Winchilsea and Nottingham, E.
Nelson, E.	Wise, L.
Nicol, B.	Worcester, Bp.
Northfield, L.

NOT-CONTENTS
Arran, E.	Jenkin of Roding, L.
Astor, V.	Kenilworth, L.
Auckland, L.	Kimball, L.
Belstead, L.	Lauderdale, E.
Blatch, B.	Lindsey and Abingdon, E.
Boardman, L.	Long, V.
Boyd-Carpenter, L.	Mackay of Clashfern, L.
Braybrooke, L.	Mancroft, L.
Brookeborough, V.	Merrivale, L.
Brougham and Vaux, L.	Monk Bretton, L.
Caithness, E.	Monteagle of Brandon, L.
Campbell of Croy, L.	Mottistone, L.
Carnegy of Lour, B.	Mountevans, L.
Cavendish of Furness, L.	Mowbray and Stourton, L.
Coleraine, L.	Murton of Lindisfarne, L.
Colnbrook, L.	Onslow, E.
Colville of Culross, V.	Orkney, E.
Colwyn, L.	Pender, L.
Constantine of Stanmore, L.	Prior, L.
Cox, B.	Rankeillour, L.
Davidson, V. [Teller.]	Reay, L.
Denham, L. [Teller.]	Renton, L.
Elliot of Harwood, B.	Rochdale, V.
Elton, L.	Rodney, L.
Ferrers, E.	Salisbury, M.
Flather, B.	Savile, L.
Fraser of Carmyllie, L.	Seccombe, B.
Glenarthur, L.	Skelmersdale, L.
Hemphill, L.	Strathmore and Kinghorne, E.
Henley, L.	Sudeley, L.
Hesketh, L.	Trumpington, B.
Hives, L.	Ullswater, V.
Hooper, B.	Vaux of Harrowden, L.
Jeffreys, L.	Waddington, L.

Resolved in the affirmative and amendment agreed to accordingly.

6.50 p.m.

Clause 23 [Alteration of certain penalties under Theft Act 1968]:

The Minister of State, Home Office (Earl Ferrers) moved Amendment No. 70:

Page 18, line 48, at end insert: ("(4) In section 51(4) of the Criminal Law Act 1977 (penalties for bomb hoaxes)—

1. (a) in paragraph (a), for the words "three months" there shall be substituted the words "six months"; and
2. (b) in paragraph (b), for the words "five years" there shall be substituted the words "seven years".").

The noble Earl said: In moving this amendment I shall speak also to Amendment No. 106. The amendment to Clause 23 increases the maximum penalty for bomb hoaxes. In the magistrates' courts an offender would be liable to a maximum sentence of six months, the longest such a court may impose for a single offence, rather than three months as at present. The maximum sentence which a bomb hoaxer might receive in a Crown Court would rise from five to seven years.

A bomb hoax is an irresponsible waste of other people's time and effort. It can cause great inconvenience to very many people. It can also endanger lives by making it harder to identify and to respond to genuine warnings. Eighty-four hoax calls were made in the 24 hours after a bomb was discovered at Paddington station in February. Nearly 800 hoax calls were received by the end of the following week. In view of that spate of hoaxes my right honourable friend Mr. Patten announced a review of the maximum penalties when the Bill was considered on Report in another place.

My right honourable friend the Home Secretary announced on 13th March that the penalties would be increased and he undertook to bring forward an amendment to the Criminal Justice Bill. The new maximum penalties provide a clear indication of the seriousness with which we and the public as a whole view the offence. I know that it will meet with the approval of my noble friend Lord Boyd-Carpenter since he offered his support for an increase in the penalties when he raised the subject at Second Reading. I hope that it will also meet with the approval of the Committee.

The amendment to Clause 86 ensures increased penalties for bomb hoaxes in Scotland as well as in England and Wales. It also extends to Scotland Clause 23(3), which increases the penalties for offences under the Badgers Act 1973. In both cases the original offences already extend to Scotland. I beg to move.

Lord Harris of Greenwich

Having raised this matter with others, I am delighted that the Government have brought forward the amendment. The noble Earl is quite right. Public opinion has taken two forms; first, that bomb hoaxes, which have on some occasions paralysed London's public transport system and caused great anxiety among the travelling public, are a matter of grave public concern, and, secondly, that the maximum sentence in the magistrates' courts of three months, which with remission means in reality six weeks, is wholly inappropriate. I am very glad that the Government have listened to our views and have put the amendment before the Committee.

Lord Richard

We think the amendment sensible and support it.

Lord Hylton

The principle of the amendment is right. Perhaps the noble Earl can say whether the maximum sentence will now be the same in England and Wales as in Northern Ireland. The offence of creating a bomb hoax seems to be just as serious wherever it occurs.

Lord Monson

Bomb hoaxes certainly cause an enormous amount of worry and inconvenience and cost a great deal of money. For that reason I welcome paragraph (a) which enables the sentence for a summary offence to be increased from three to six months. Paragraph (b) is a little different. Perhaps the noble Earl can give an example of where a judge has complained that the current maximum sentence of five years is inadequate. Secondly, how does the proposed maximum sentence compare with the penalties which can be imposed for giving, for example, a false fire alarm? I am a little worried about raising sentences for public relations purposes if it is not strictly necessary and if judges have not complained about the inadequacy of the current maximum sentence.

Earl Ferrers

I am grateful to the noble Lords, Lord Harris and Lord Richard, for agreeing with the Government for the first time this afternoon. I commend them on that attitude and I hope that it will continue. I cannot at the moment tell the noble Lord, Lord Hylton, the position with regard to Northern Ireland but I shall find out and let him know. The noble Lord, Lord Monson, asked whether judges have expressed the view that the present sentences are inadequate. My right honourable friend Mr. Patten undertook a review of the present position. Although maximum sentences may not be used 'very frequently they do set the scale by which sentences tend to be given. If the maximum is lower down the scale the chances are that other offences which attract a lesser penalty will accordingly attract a less than adequate penalty. I hope therefore that the Committee will agree to the amendment.

On Question, amendment agreed to.

Lord Mancroft moved Amendment No. 70A:

Page 18, line 48, at end insert: ("( ) Notwithstanding section 1(3) above the court shall not pass a custodial sentence solely for an offence under section 5(2), or section 19 as it applies in the case of proceedings for an offence under subsection 5(2), of the Misuse of Drugs Act 1971.".

The noble Lord said: The purpose of this amendment is simply to write on the face of the Bill that which is the Government's published intention; namely, that drug addicts should not be sent to prison but should receive treatment for their problem.

In 1989, which is the last year for which I have figures, and the last year for which I believe figures were published, 1,821 people went to prison for unlawful possession. Most people with drug problems use alcohol and prescription drugs, possession of which carries no risk of imprisonment. It is therefore somewhat innocuous that a problem with one group of drugs only carries with it the risk of imprisonment. Most of those who end up in prison have never been in contact with any drug agency or facility, often because they fear that contact with a statutory agency may lead to prosecution and a possible prison sentence.

Let me make it clear immediately that this is not a backdoor route to legalisation or decriminalisation but merely a recognition that in a civilised society we do not imprison people for having what the World Health Organisation has long defined as a treatable disease. Indeed the courts have a vital role to play in directing offenders toward agencies where they can receive help. It is a role that would be emphasised by this amendment. It may be argued that the courts need the ultimate option of a prison sentence to deter the repeated offender, but all the evidence shows that drug users are not deterred by this threat. What it does show, however, is that many people with drug problems need several attempts at treatment to overcome their problems.

At a meeting with my right honourable friend the Minister of State I learnt of the intention to introduce a methadone maintenance programme in prison for addicts. That filled me with even greater horror. Prison has accurately been described as a temporary break in drug use. But at least it was that. The idea that prisoners should receive doses of addictive narcotics in prison is a return to an idea that failed 20 years ago. I hope that it will not be repeated. If my noble friend cannot accept my amendment perhaps he can at least assure the Committee that this policy will not be adopted.

The amendment is a logical development of current practice. Many police forces now only caution those in possession of Class B drugs. An increasing number of police forces caution those in possession of any controlled drug. By removing the penalty of imprisonment a degree of consistency so far lacking would be introduced. At the same time it would mean that those most in need of treatment would receive it, which is the Government's real intention. It has been suggested that this would prevent the use of community sentences. In fact, it would only affect suspended sentences, which would be a very good thing in this case as they lead to the highest rate of recidivism and to community service orders. It is more difficult with community service orders, but in fact they are very rarely used—in less than 2 per cent. of cases, I believe.

What the amendment does allow, however, and indeed encourages, is the use of a probation order with a condition of treatment, which is exactly what the Government want. As such, I confidently expect my noble friend to accept the amendment with open arms. I beg to move.

7 p.m.

Earl Ferrers

My noble friend is most persuasive. I understand his concern. Indeed, I listened with interest to what he said. However, I cannot agree with his view that this is the right course of action to adopt. I accept the fact that in many cases such offences are not serious and that the offender has possession of the drugs simply for his own use or that of his friends. In such circumstances, a custodial sentence may well be inappropriate. Moreover, current sentencing practice reflects that fact. For example, in 1989, of all those persons cautioned or convicted of unlawful possession of drugs, 35 per cent. were cautioned (12,109 people) and a further 44 per cent. (14,888 people) received a fine.

However, such offences can also be more serious. In 1989, 6 per cent. of all those cautioned or convicted of unlawful possession of drugs received a prison sentence. We are not only talking about possession of Class C or B drugs, such as cannabis; we are also talking about possession of Class A drugs, such as cocaine or opium. The maximum term of imprisonment for such offences is seven years. I believe that it would be wrong to prevent the courts from using this sanction in appropriate cases.

If my noble friend's amendment were to be accepted, a person might be in possession of a quantity of heroin or cocaine, or both, but could not be sent to prison unless it were possible to prove an intent to supply. That would be so even, for example, if the offender were someone in a position of authority or influence who had incited others to follow his example. I can assure my noble friend that, under the sentencing framework proposed in the Bill, if the offence is not serious it will not warrant a custodial sentence. I suggest that there is no need in this respect for any special provision in the legislation to deal with drug offences. For the reasons I have outlined, I believe that stronger sentences must remain. I understand my noble friend's point of view, but in view of what I said I trust he will agree that it would be inappropriate to relax the conditions.

Lord Elton

Before my noble friend sits down, perhaps he will be kind enough to elaborate a little on what he said regarding the distinction between different kinds of people being in possession of different classes of drug. I take it from what he said that the Government are broadly of the view that, where a person is in possession of drugs of whatever class for his own use and where he obviously needs treatment, it will not be normal for such a person to receive a custodial sentence, regardless of the quantity of drugs, provided that the amount involved is consistent with the drugs being for his own use.

I also understand from what my noble friend said that custodial sentences will be used for those who may be presumed to have the drugs for the use of other people as well as themselves. That is an entirely different matter. I believe that is what my noble friend was saying, but it was not entirely clear.

Earl Ferrers

It is entirely a matter for the courts to decide what form of sentence should be imposed for each offence. If the offence was not very great, or if the person actually needed some kind of restorative treatment, the courts might decide to order such treatment. However, if my noble friend's amendment were to be accepted, it would mean that those who had drugs of a very strong nature could, nevertheless, not receive a custodial sentence.

I am sure that my noble friend would not expect me to dictate to the Committee or to the courts the type of sentence which should be imposed. As I said, there are sentencing provisions in the Bill. I believe that they are correct. In my view it is also appropriate that those in possession of strong drugs should on occasion be sentenced to terms of imprisonment.

Lord Monson

I do not know whether the noble Earl and Members of the Committee are aware that the investigations of the Department of Transport have revealed that rather more road fatalities are associated with the consumption of perfectly legal drugs—that is, whether obtainable over the counter or on prescription—than with illegal drugs such as cannabis. Of course, that is not a totally conclusive argument. However, I believe that it adds a certain amount of weight to the suggestion made by the noble Lord, Lord Mancroft.

Lord Mancroft

I have listened with great care, as I always do, to my noble friend's response. I must say that I am not wholly convinced by it. He mentioned the seven-year maximum sentence. Of the many thousands of people who were cautioned or even prosecuted in 1989, only 1,800 were sent to prison. But of that number, only 24 received sentences of over two years' duration. That was presumably because the quantity of drugs involved was large.

It must be said that anyone caught with drugs which are over the fixed amount I cannot remember the quantity involved —is automatically charged with supply and not with possession. Therefore, the argument that holding a Class A drug, or possession of a large quantity of drugs, is deserving of a prison sentence does not hold water. Indeed, if you are in possession of more than a certain amount you are automatically presumed to be a supplier. A person is only charged with possession if the amount involved is very small. It is quite clear that those are the people who need treatment. I am in full agreement with my noble friend that, where there is even a remote suspicion that a person is a supplier and the case can be proved, such a person should go to prison. However, that is a different matter.

As I said, I am not absolutely certain that my noble friend's argument holds water. The police in various forces are very inconsistent at present in what they do; and, indeed, there is much inconsistency in what happens in the courts once a conviction has been obtained. If such police forces were as worried as my noble friend seems to believe they may be, they would undoubtedly not caution and release people. Some police forces now make no attempt to prosecute for this offence. It seems to me to be most unwise and unsatisfactory to have an offence on the statute book for which the police will not prosecute.

If this is such a ghastly crime and deserving of a prison sentence, it is rather extraordinary that another government department should be supplying drugs to addicts on the streets as happens in Liverpool. Indeed, if such drugs are so terrible they should not be supplied. After all, there are no therapeutic reasons for their supply. However, that initiative is encouraged by one government department in one part of the country, while in another a second seeks to make it an offence for people to carry such drugs. The situation is extraordinarily inconsistent and unsatisfactory.

I do not propose to press the amendment this evening. However, I shall study carefully what my noble friend said. It is possible that I may wish to return to the matter at a later stage of the Bill's proceedings. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Reay

I think that this is an appropriate moment for us to break. I suggest that we do not return to the Committee stage of the Bill until 10 minutes past eight. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.